THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


BOOKSTORE 

BMOHROUCt 


American 

Law  of  Real  Estate 

Agency 

Including 

The  duties  and  liabilities  of  Principals  and  Agents. 
The  earning  of  commissions  by  Real  Estate 
Brokers,  Pleading,  Practice,  and  Judicial 
Constructions  and    Interpretations, 
and  Forms  for  Listing,  Brok- 
erage and  other 
Contracts. 


By 

WILLIAM  SLEE  WALKER 

(OF  THE  CINCINNATI  BAR) 


SECOND  EDITION 


CINCINNATI,  O. 

THE  W.  H.  ANDERSON  COMPANY 

LAW  BOOK  PUBLISHERS 

1922 


Copyright 

THE  W.  H.  ANDERSON  COMPANY 
1910 


Copyright 

THE  W.  H.  ANDERSON  COMPANY 
1922 


T 

~a<Tr 


PREFACE 


Time,  which  enlarges  the  patrimony  of  the  law,  in  order  to 
collate  and  present  the  many  recent  important  decisions  which 
have  greatly  enriched  the  Law  of  Real  Estate  Agency,  calls 
for  a  second  edition  of  this  work.  These,  while  not  changing 
the  principles,  add  many  interesting  phases.  In  addition, 
Forms  for  Listing,  Brokerage,  and  other  Contracts  are 
appended. 

Aside  from  the  codes  and  practice  in  some  of  the  states,  a 
fair  uniformity  in  applying  the  law  exists.  On  account  of 
the  unanimity  of  the  decisions  on  the  questions  of  the  pro- 
curing cause  of  the  sale  or  the  finding  of  a  purchaser,  such 
eases  have  not  been  incorporated,  except  where  they  occurred 
in  states  not  already  represented  or  presented  well  defined 
instances,  especially  where  several  brokers  contended,  and 
however  praiseworthy  may  have  been  the  unrequited  labors  of 
the  others  who  contributed  to  bring  about  the  result,  never- 
theless the  court  or  jury,  under  proper  instructions,  was 
required  to  cut  the  Gordian  knot  and  award  the  verdict  to 
the  one  deemed,  taking  all  the  circumstances  into  thoughtful 
consideration  to  be  the  actual  procuring  cause  of  the  sale  or 
the  finding  of  a  purchaser. 

Part  V,  "Pleadings,  Practice  and  Judicial  Instructions  and 
Interpretations,"  has  been  very  materially  strengthened.  These 
illustrations  merit  careful  scrutiny,  for  many  promising  actions 
have  been  lost  and  many  meritorious  defenses  have  failed  to 
be  availed  of  because  of  errors  of  omission  or  commission. 

The  aim  has  been  to  make  this  preeminently  a  book  of 
practice,  abounding  in  illustrative  cases,  to  furnish  precedents 
applicable  to  the  lawyer's  as  well  as  the  real  estate  agent's 
needs.  While  not  underrating  the  value  of  general  well-defined 

iii 


/•  Q 

rS^'W-  2 


IV  PREFACE. 

principles,  the  overwhelming  importance  of  clearly  reasoned 
decisions  on  the  particular  point  involved  can  not  be  gainsaid. 
It  takes  cases  to  win  cases,  and  what  surpasses  the  value  of 
forcible  decisions  wholly  or  nearly  on  all-fours  with  the  facts 
in  the  case  at  bar? 

Forms  are  largely  advisory,  and'  these  given  will  serve  as 
suggestive  aids  in  the  preparation  of  contracts  as  occasion  re- 
quires. 

Appreciating  the  generous  reception  of  the  first,  may  we 
hope  that  this  greatly  enlarged  second  edition  may  merit  even 
greater  approval. 

WILLIAM    SLEE    WALKER. 
Cincinnati,  May,  1922. 


ABBREVIATIONS 


A.  &  E American  &  English  Annotated  Cases. 

A Atlantic  Reporter. 

Aff Affirmed. 

Aff.  on  re Affirmed  on  rehearing. 

Ag Agency. 

Am.  St.  Rep American  State  Reports. 

Amend,  of  man.  den Amendment  of  mandate  denied. 

Ann.  Cas Annotated  Cases. 

App Appeals. 

App.  Div New  York  Appellate  Division. 

App.  to  Ct.  App.  &  rear.  den.  . . .  Appeal  to   Court  of  Appeals   and  re- 
argument  denied. 

C Chapter. 

C.  C.  A United  States  Circuit  Court  of  Appeals. 

Ch Chancery. 

Civ Civil. 

Civ.  Code  Proc Civil  Code  of  Procedure. 

Ct.  App Court  of  Appeals. 

Cyc Cyclopedia  of  Law. 

Deft Defendant. 

Den.  re Denying  rehearing. 

Eq Equity. 

Fed Federal  Reporter. 

Gen.  Stat General  Statutes. 

Houst Houston. 

Id Same. 

Judg.  aff 'd Judgment  affirmed. 

Judg.  rev Judgment  reversed. 

Judg.  rev.  on  sug.  of  er Judgment  reversed    on    suggestion   of 

error. 

L Law. 

L.  D Law  Dictionary. 

L.  R.  A.  n.  s Law  Reports  Annotated,  new  series. 

Memo Memorandum. 

Misc Miscellaneous. 

Mo.  to  am.  Permit.  Den Motion  to  amend  remittitur  denied. 

N.  Y.  Supp New  York  Supplement. 

N.  E Northeastern  Reports. 

v 


71  ABBREVIATIONS. 

N.  W Northwestern  Reports. 

Opin.  mod.  on  re Opinion  modified  on  rehearing. 

P Page. 

P Pacific  Reporter. 

Pet.  for  re.  over,  but  opin.  mod. .  Petition  for  rehearing   overruled,   but 

opinion  modified. 

Pub Public. 

R.  E Real  Estate. 

Re.  de Rehearing  denied. 

Rem. Remington. 

Rem.  &  Bal Remington  and  Ballinger. 

Rev Reversed. 

Rev.  Judg Reversed  judgment. 

Sec Section. 

S Southern  Reporter. 

S.  E Southeastern  Reporter. 

S.  W Southwestern  Reporter. 

Stat Statutes. 

Subd Subdivision. 

Sup Supreme  Court. 

Super Superior  Court. 


TABLE  OF  CONTENTS. 


PART    I. 
THE    CONTRACT    OF    AGENCY. 


CHAPTER  I. 

SECTION  PAGE 

1.  Who  are  capable  of  becoming  principals  and  agents 1 

2.  Power  of  delegating  authority 1 

3.  Inherent  power  of  becoming  agents 2 

3a.  Agent  distinguished  from  broker 2 

4.  Personal  acts  that  are  undelegatable 2 

5.  Acts  that  cannot  be  sub-delegated 2 

6.  Special  and  general  agency 3 

7.  Agents  who  are  termed  brokers 4 

8.  Who  is  not  a  broker 5 

8a.  Definition  of  the  term  "brokerage" 5 

9.  Licenses    5 

10.  How  brokers  are  appointed 5 

11.  Employment  of  sub-agents 6 

1  la.  When  sub-agent  not  entitled  to  compensation 7 

lib.  Illegally  appointed  sub-agent 7 

12.  Employment  of  brokers,  and  its  limitations 7 


CHAPTER  II. 

13.  Exclusive  employment  as  broker  or  agent 12 

14.  Duration  of  the  agency 15 

15.  Termination  of  the  agency 17 

16.  A  contract  coupled  with  an  interest 23 

17.  Special  contract  for  the  sale  of  real  estate 24 

18.  Authority   conferred   on   brokers   and   agents 28 

vii 


viii  TABLE  OF  CONTENTS. 


CHAPTER  III. 

SECTIOBT 

19.  Nudum  pactum,  a  contract  to  be  effective  must  be  based  upon  a 

consideration   37 

20.  Unilateral  contracts    40 

21.  Consideration  as  an  essential  constituent  of  an  enforceable  con- 

tract         41 

22.  Revocation   of  authority  granted  to  agent 44 

23.  Repudiation  or  rescission  of  the  contract 50 


CHAPTER  IV. 

24     Ratification 54 

CHAPTER  V. 

25.  Privity    64 

26.  Power  of  attorney,  its  extent  and  limitations 66 

27.  The  attorney  in  fact 69 

28.  Assignees    and    assignments 69 

29.  Attorneys  at  law 70 

30.  Auctions   and  auctioneers 71 

CHAPTER  VI. 

31.  Architects : 72 

32.  Abstracts  of  title 72 

33.  Meeting  of  minds 73 

34.  Executors  and   administrators 74 

35.  Trusts    and    trustees 76 

36.  Principal    and    agent 78 

37.  Partnership 80 

CHAPTER  VII. 

38.  Corporations    83 

39.  Husband  and  wife 86 

40.  The  vendor 89 

41.  The  vendee   or  purchaser 90 


TABLE   OF    CONTENTS. 


CHAPTER  VIII. 

SECTION  PAGE 

42.  The    owner    97 

43.  Covenants    102 

44.  Conditional  contracts 103 

45.  Condition  precedent  to  taking  effect 103 

46.  Death,  and  its  eff ect  on  contracts 104 

47.  Approval   of   principal 104 

48.  Abbreviations    ........               105 


CHAPTER  IX. 

49.  Ambiguous    contracts 106 

50.  Banks 106 

51.  Consent 107 

52.  Caveat  emptor 112 

53.  Credit     112 

54.  Contingency 113 

55.  Changes  in  contracts 114 

56.  Counter  proposition 115 


CHAPTER  X. 

57.  Deeds    116 

58.  Deeds,  their  execution  by  agents 119 


CHAPTER  XI. 

59.  Description  of  property 120 

60.  Drunkenness     122 

61.  Fixed  price 122 

62.  Guardian  of  minor  or  insane  person 123 

62a.  Appointment  of  receiver  bars  brokers'  commissions 124 

63.  Undivided    interest 124 

64.  Interest  of  tenant  in  common < 125 

65.  Contract  conditional  on  securing  other   interests 125 

66.  Consolidation   of   interests   not  a   sale 125 

67.  Payments  in  installments 126 

68.  Introduction  of  prospective  purchaser 126 

69.  Indirect  acts  ineffectual  to  establish  contractual  relations 128 

69a.  Indirect  sale  which  authorizes  commissions  to  broker 129 


I  TABLE  OF   CONTENTS. 

SECTION  PAGE 

70.  Information  acted  on  by  broker  not  establishing  contractual  re- 

lations          129 

71.  Insurance  company,  broker  obtaining  loan  from  not  agent  of ....      129 


CHAPTER  XII. 

72.  Written  proposition  from  proposer  and  acceptance  by  agent  makes 

binding  contract    130 

73.  On  failure  of  vendor  to  re-execute  contract  after  purchaser  ma- 

terially altered,  no  meeting  of  minds 130 

74.  Signature  of  principal  by  agent 131 

75.  Signature  of  principal  by  agent  should  be  followed  by  his  as 

agent   131 

76.  Signature  of  B,  as  attorney  for  parties  of  first  part,  failed  to 

bind  the  principal 131 

76a.  Agent  contracting  as  principal  personally  liable  as  such 132 

76b.  Broker  entitled  to  commissions  for  sale  to  fellow  broker 132 

77.  Signature  placed  at  bottom  or  top  suffices 132 

78.  The  word  subscribed  equivalent  to  signed 133 

79.  In  some  states  a  contract  to  divide  commissions  must  be  in  writ- 

ing          133 

79a.  Unless  barred  by  statue,  broker  may  be  authorized  by  parol  to 

sell  or  lease  real  property    133 

79b.  In   certain    states    contracts   for   sale   of   lands    must   be   in 

writing 133 

79c.  Contract  may  be  put  in  writing  after  performance 134 

79d.  Action  ex-delicto  maintainable  on  parol  contract 134 

80.  Broker,  on  procuring  customer,  sending  telegram  to  owner,  tele- 

graph company  not  agent  as  to  notice 134 

81.  Telegram  must  reach  owner  before  he  signs  contract  with  an- 

other, or  it  is  too  late 134 


TABLE  OF  CONTENTS.  3 

PART   II, 
OPTIONS,   SALES,   EXCHANGES,   LEASES,   LOANS,    ETC. 


CHAPTER  I. 

SECTION  PAGE 

82-111.     Options    on    real    estate 137-149 


CHAPTER  II. 
112-148.     Sales  of  real  estate 150-165 

CHAPT5R  III. 
149-195c.  Exchanges    of   real   estate 166-184 

CHAPTER  IV. 
196-221f.     Leases    185-197 

CHAPTER  V. 
222-257b.     Loans  on  real  estate ' 198-214 

CHAPTER  VI. 

258-275a.     Mortgages   215-223 

276-281.       Bonds      224-226 

282-282a.     Building  materials,  building  contract,  builders'  loan 226-227 

283-289c.  Liens  .,                                                                                     ..227-230 


TABLE  OF   CONTENTS. 


PART    III. 

RIGHTS,   DUTIES    AND    LIABILITIES    OF    PRINCIPAL 
AND    AGENT. 


CHAPTER  I. 

SECTION  PAGE 

290.  Duty  or  obligation  of  an  agent  to  his  employer  and  others ....  233 

291.  Concealment  and  its  effect  upon  rights 245 

292.  Abandonment  of  employment,  and  of  contract  by  purchaser ....  252 

293.  Alterations  made  in  written  instruments 255 

294.  Adverse    interests 255 

295.  Betrayal   of   trust 255 

295a.  Discharging  trust  by  returning  earnest  money 257 

296.  Collusion    .  257 


CHAPTER  II. 

297.  Deposits  259 

298.  Deceit 260 

299.  Action  for  damages 262 

300.  Measure  of  damages 266 

301.  Clerks 272 

302.  Conduct  of  broker 273 

302a.  Conduct  of  owner. .  273 


CHAPTER  III. 

303.  Debt  of  another 274 

303a.  When  county  not  chargeable  with  a  debt 275 

304.  Discretion    275 

305.  Double  liability 275 

306.  Double  capacity 278 

307.  Contract  in  excess  of  authority  vested  in  agent 278 

307a.  Contract  of  broker  varying  from  instructions  will  not  be  enforced.279 
307b.  An  agent  who  enters  into  a  contract  without  authority,  or  who 

exceeds  same,  binds  himself 279 

307c.  Broker  not  entitled  to  commission  where  lots  were  sold  out  of 

order  ..279 


TABLE  OF  CONTENTS.  Xlll 

SECTION  FAGS 

308.  Exoneration    280 

309.  Expenses    280 

310.  Employment  of  engineer 280 

311.  Fiduciary    relations 281 

312.  Failure  of  broker  to  report  offer 282 

313.  False  representations 282 


CHAPTER  IV. 

314.  Fraud  of  broker  against  his  principal 285 

315.  Fraud  of  broker  against  third  persons 297 

316.  Fraud  of  sub-agent   300 

317.  Fraud  of  principal  against  broker 300 

318.  Fraud  of  third  persons  against  broker 302 

319.  Fraud  of  principals  inter  se 302 

320.  Debatable  acts  of  broker  not  constituting  fraud 302 

321.  Points  of  practice  in  actions  for  fraud 305 


CHAPTER  V. 

322.  When  a  broker  is  and  when  not  liable  for  interest 309 

323.  Broker  obtaining  interest  hostile  to  principal 309 

324.  Improvement  of  property  beyond  authority  of  agent 310 

325.  Agent  neglecting  to  place   insurance   liable 310 

326.  Illegal  purposes 310 

327.  Illegal    contract 310 

328.  Implied    powers 310 

329.  Joint  owner  condoning  fraud  liable 312 

329a.  Liability  of  purchaser  colluding  with  agent 312 

330.  Agent  to  sell  has  no  power  to  grant  license  to  cut  timber 313 

331.  What  a  principal  must  do  to  escape  liability 313 

332.  Power  confirming  sales  confers  power  to  sell 313 

333.  Power  to  sell  land  acquired  afterward 313 

334.  Power  to  sell  land  not  conveyed 313 

335.  Power  to  sell  land  on  credit,  may  receive  payment 313 

336.  Power  to  sell  land  for  settlement,  when  not  violated 314 

337.  Power  to  sell  land,  not  power  to  lease 314 

337a.  Authority   of  agent   construed   to   authorize   contract   to   sell, 

but  not  to  convey  real  estate 314 

337b.  Power  to  sell  does  not  include  power  to  give  an  option 315 

337c.  Broker  unauthorized  to  transfer  principal's  note  and  mortgage.  .315 

338.  Agent  buying  liable  for  value  of  land  warrants 315 

339.  Authority  to  locate  and  survey,  no  power  to  sell 315 


liv  TABLE  OF   CONTENTS. 

r' 
SECTION  PAGE 

340.  Power  to  sell  in  lots,  none  to  sell  otherwise 315 

341.  Broker  not  liable  for  mutual  mistake  as  to  power 316 

341a.  Broker  entitled  to  commission  on  land  sold  through  mistake 

of    owner 316 

34  Ib.  Broker  not  liable  to  third  parties  for  acte  in  representative 

capacity    316 

342.  Agent  to  sell  land  can  take  nothing  but  money 316 

343.  Broker  has  no  right  to  receive  Mexican  money 317 

344.  When  broker  need  not  tell  principal  what  land  sold  for 317 

345.  Agent  knowing  defect  in  title  cannot  acquire  adverse  to  principal  317 

346.  Broker  guilty  of  negligence  barred  commissions 317 

347.  Owner  liable  to  prospective  tenants  for  injury 318 

347a.  When  principal  liable  for  tortious  act  of  insane  agent 318 

348.  Brokerage  contract  not  set  aside  for  fraud 318 

349.  Broker  liable  for  loss  through  negligence 318 

350.  Broker  departing  from  instructions  liable 319 

351.  Broker,  when  not  liable  for  loss  on  forged  note 319 

352.  Broker,  when  not  authorized  to  collect  note 319 

353.  Maker  may  pay  when  broker  has  note 319 

354.  Agent  has  no  power  to  receive  before  due 319 

355.  Agent  to  collect  interest,  no  power  to  collect  principal 320 

356.  Agent  doing  all  business  may  collect  note 320 

357.  Debtor  should  see  that  agent  has  security 320 

358.  When  broker  entitled  only  to  nominal  damages 320 

359.  Notice  to  agent 321 

360.  Broker  must  give  notice  to  principal  on  finding  a  purchaser ....     321 

361.  When  notice  waived 321 

362.  When  principal  cannot  escape  liability  for  commissions 321 

362a.  Oral  agreement  to  act  as  sales  manager  upheld 322 

363.  Agent  to  make  written,  cannot  make  oral  contract 322 

363a.  Broker  not  entitled  to  commissions  on  contract  not  conforming 

with  authority 322 

364.  Agent  under  oral  authority  cannot  bind  by  written  covenants . .  322 


CHAPTER  VI. 

365.  Postponement  by  purchaser,  broker  earns  commissions 323 

366.  Undisputed  possession  for  years,  raises  presumption  of  agent's 

authority  to   convey 324 

367     Words  "placed  in  hands  of"  do  not  give  possession 324 

367a.  The  word  "sell"  means  "to  find  a  purchaser" 324 

367b.  The  phrase  "in  any  event"  held  to  mean  "whatever  may  happen"  324 
368.     Agent  buying  and  taking  deed  to  himself,  holds  absolutely 324 


TABLE   OF    CONTENTS.  XV 

SECTION  PAGE 

369.  Principal  taking  land  in  lieu  of  cash  liable  to  broker  for 

commissions     325 

370.  Principal  paying  one  broker,  not  further  liable 325 

370a.  Landowner  not  liable  to  others  his  agents  employ 325 

371.  Pool  to  divide  commissions  bars  recovery  by  broker 325 

37 la.  Brokers    may    make    oral    contracts    between    themselves    to 

divide  commissions 326 

372.  Agent  to  make  repairs,  not  permanent  improvements 327 

373.  Broker  cannot  retain  commissions  from  purchase  money 327 

374     Vendor  refusing  to  sell  liable  for  commissions 327 

374a.  Owner  cannot,  by  refusing  to  convey,  avoid  liablitiy  to  broker 

for  earned  commissions 327 

375.  When  refusing  to  sell  broker  not  entitled , 328 

376.  Other  property  taken  does  not  deprive  broker  of  commissions . .     328 

377.  Broker  refused  land  for  commissions  may  take  cash 328 

378.  Originally  agreeing  to  take,  on  refusal,  cannot  recover  in  money  329 

379.  Release  by  one  broker  left  other  entitled  to  half  remaining 

land    329 

380.  Release  of  vendee  does  not  deprive  broker  of  fee 329 


CHAPTER  VII. 

381.  Agent  to  collect  rent  not  authorized  to  employ  broker  to  sell 

land    330 

38 la.  Agents  to  rent  and  care  for  land  may  purchase  for  themselves.  .331 

382.  Broker  required  to  refund  commissions  when  he  has  acted  in 

bad  faith 331 

383.  Receipt   by    broker,    signed   by   himself    as    agent,   binds    him 

individually    331 

384.  Where  agent  gives  receipt  in  name  of  principal,  purchaser  must 

look  to  latter 332 

385.  Receipt  in  name  of  principal,  purchaser  may  recall  before  money 

is    paid   to   him 332 

385a.  Receipt  of  broker  for  purchase  money  binds  owner 332 

386.  Creditor  authorized  to  collect  rent  cannot  pay  therefrom  his 

own    debt     332 

387.  Agent  to  collect  rent  must   apply   the  same   as   directed   by 

principal   333 

388.  Broker  acting  in  interest  of  others,  not  entitled  to  share  in 

transaction  for  principal 333 

389.  Broker  purchasing  property  not  entitled  to  commissions  for  its 

sale 333 

389a.  Agent  cannot  become  buyer  of  principal's  property 333 


XVi  TABLE    OF    CONTENTS. 

SECTION  PAGE 

389b.  When  employed  to  purchase,  agent  cannot  sell  his  own  property 

to  principal 334 

389c.  Circumstances  under  which  agent  has  right  to  purchase  the 

property  for  himself 334 

390.  Broker  liable  for  fraud  of  sub-agent 334 

390a.  Sub-agent  acting  in  good  faith  not  liable  for  mistake  of  his 

principal   334 

391.  Sub-agent  concealing  fact  deprives  broker  of  right  to  commissions335 

392.  Sub-agent    exceeding    authority    bars    commissions 335 

392a.  Broker  selling  on  terms  varying  from  instructions 335 

392b.  Broker  departing  from  instructions  in  making  sales 335 

393.  Principal  not  liable  to  broker's  sub-agent 335 

394.  Broker  not  liable  for  poor  sale  by  sub-agent 336 

394a,  When  agent  without  implied  power  to  appoint  sub-agent 336 


CHAPTER  VIII. 

395.  Sub-agent   violating    instructions 338 

396.  Sub-agent  entitled  to  share  of  one-half  commissions 338 

396a,  Sub-agent  confined  to  share  stipulated,  and  not  entitled  to 

share  of  extra  commission  to  chief 338 

397.  Agreement  with  sub-agent  to  divide  fees  binding  on  producing 

customer  338 

397a.  Sub-agent  entitled  to  half  commission  growing  out  of  combined 

option  and  sale 339 

397b.  Sub-agent  employed  to  assist  entitled  to  recover  regardless 

of  value  of  service  rendered 339 

398.  One  employing  agent  liable  for  commissions 339 

399.  Secretly  learning  price  and  sending  buyer,  broker  does  not 

earn    commissions 340 

399a.  Broker  entitled  to  commission  on  sale  by  owner  to  his  customer  340 

400.  Secretly  representing  both  parties  bars  commissions 340 

401.  Vendor  acts  in  bad  faith  by  giving  commissions  to  purchaser's 

agent    340 

402.  Broker  required  to  exercise  the  skill  of  persons  engaged  in 

his    calling 341 

403.  Broker  may  be  responsible  for  sufficiency  of  security 341 

403a.  Contract  held  to  guaranty  payment  of  $8,000  for  land  sold 

at    public    auction 341 

404.  Broker  must  account  to  principal  for  money  received,  statue 

of    frauds    no    protection 341 

404a.  Broker  required  to  account  for  proceeds  of  land  sold  by  him 

in  trust  to  pay  debts  of  owner 342 


TABLE    OF    CONTENTS.  XV11 

SECTION  PAGE 

405.  Broker  for  seller,  member  of  purchasing  syndicate,  bars  com- 

missions   342 

406.  Broker  giving  names  of  syndicate  before  formed,  owner  selling 

to    others    bars    commissiona 342 

407.  Tenants  in  common  jointly  liable  for  commissions 342 

407a.  Three   brothers    employing   agent    to   sell    realty    for    family 

personally  liable  on  contract 343 

408.  Broker  selling  for  lower  price  than  authorized  bars  commissions  343 

409.  Terms  of  authorization  cannot  be  varied 343 

409a.  Owner  not  bound  to  accept  customer  from  broker  at  less  price 

than    stipulated 344 

410.  Half -cash  complied  with  by  sale  for  all  cash 344 

410a.  Broker  authorized  to  sell  for  half-cash  and  remainder  on  time 

cannot  sell  for  all  cash 344 

411.  Contract  modified,  rights  depend  on  new 345 

41  la.  Written  authority  to  sell  realty  cannot  be  modified  orally. . . .  345 

412.  Failing  to  disclose  best  terms  bars  commissions 346 

412a.  Broker    understanding   price   obtainable,    liable    to    principal 

for    loss..  346 


CHAPTER  IX. 

413.  Unless  clothed  with  power  by  owner  no  one  can  transfer  title 

to  another's  land 347 

414.  Fraudulent  acts  of  broker  may  give  rise  to  an  action  of  tort. .     348 
414a.  Proceedings  to  enforce  one  remedy  barred  any  other 348 

415.  Unauthorized  negotiations  of  broker  not  ratified  by  sale  by 

owner  to  customers 348 

416.  Broker  accepting  valuation  made  by  buyer,  principal  bound 

thereby 349 

416a.  Owner  bound  by  legitimate  effect  of  his  language  rather  than 

his  own  understanding  of  its  import 349 

417.  In  some  states  power  to  sell  and  convey  land  includes  power  to 

give  covenants  of  warranty 349 

418.  In  others  power  to  warrant  specially  conferred 349 

418a.  Broker  to  sell  land  has  no  power  to  bind  principal  by  contract 

to    sell    and    convey 350 

419.  Contract  for  sale  of  real  estate  may  be  sold  without  authority 

conferred  in  writing 350 

419a.  Contract  with  broker  to  sell  land  not  required  to  be  in  writing  350 

420.  When  duty  of  principal  to  collect  purchase  money  notes 350 

420a.  Duty  to  collect  purchase  price  devolves  on  seller 351 

420b.  Vendors  not  required  to  accept  payments  for  land  by  checks. .  351 

421.  Presumption«after  revocation  that  broker  acts  for  purchaser. .  351 


TABLE  OP   CONTENTS. 

SECTION  PAQE 

421a.  One  receiving  inquiry  from  broker  as  to  price  of  land  may  infer 

he  is  acting  for  another 351 

422.  Authority  to  sell  for  fixed  sum  binding 352 

422a.  Authority  to  sell  for  specified  sum  is  for  cash  only 352 

422b.  Allegation  in  broker's  petition  for  finding  a  purchaser  for  land 

held  to  mean  wholly  or  partly  for  cash 352 


PART    IV. 
COMMISSIONS  AND  COMPENSATION  OF  AGENTS. 


CHAPTER   I. 

423.  Broker  entitled  to  commissions  on  quantity 356 

423a.  Broker  entitled  to  agent's  commissions  and  not  limited  to  com- 
pensation on  lesser  sale  price 356 

423b.  Broker  entitled  to  commission  on  sale  of   lands  other  than 

those    listed 356 

423c.  Broker's  right  to  commissions  predicated   on   contractual   re- 
lations with  alleged  principal 357 

424.  Broker  interfering  in  another's  transaction 357 

425.  Broker  agreeing  to  look  to  purchaser  for  commissions 357 

425a.  Broker  employed  to  purchase  not  entitled  to  commissions  from 

seller 358 

426.  Broker  not  entitled  on  sale  at  less  than  price 358 

426a.  Owner   selling  land  for   less  to  broker's  customer    liable   for 

commission   358 

427.  Broker  not  entitled  as  contract  not  a  lease 359 

427a.  Acceptance  by  broker  of  change  of  sale  contract  to  option  held 

not   to   bind   principal 360 

428.  Immaterial  variance  in  description  does  not  deprive 360 

428a.  Wrong  description  insufficient  to  defeat  broker's  commissions . .  360 

428b.  What  circumstances  fall  short  of  a  variance 360 

429.  Broker  procuring  loan  for  less  accepted  entitled 361 

430.  Broker  to  procure  loan  entitled  on  finding  lender 361 

431.  Broker  failing  to  report  finding  lender  not  entitled 362 

432.  Where  broker  negotiated  with  two,  sale  to  one  bars 362 

433.  Broker  not  entitled  where  sale  void  by  statute,  t 362 


TABLE  OF   CONTENTS.  IDC 

SECTION  PAGE 

433a.  Contract  of  employment  of  broker  void  by  law  of  state  where 
made,  void  everywhere;    also,  exceptions  to  application 
of  statute  of  frauds 363 

433b.  Statute  recited  making  broker's  contract  for  sale  of  real  estate 

void  after  one  year 363 

433c.  Contract  of  broker  defective  in  trial  court  because  signature 
printed,    excepted    by   appellate   court   as    contract    had 
been  acted  upon 363 

433d.  Where  contract  void,  notes  collectible,  the  moral  obligations 

being  sufficient   consideration 364 

434.  Principal  refusing  to  appraise  broker  entitled 364 

435.  Purchaser  who  knew  length  of  lots  refusing,  bars 364 

436.  Where  vendor  repudiates  tender  not  necessary 365 

437.  Broker  unsucessful  with  F.,  broker  selling  bars 365 

438.  Broker  not  entitled  where  party  does  not  show  good  faith ....     365 

439.  Unless  exclusive  broker  not  entitled  on  sale  by  another  agent. .     365 

440.  Broker  entitled  on  sale  by  owners  to  proportionate  commissions 

on  share  of  two  tenants  in  common 366 

440a.  Broker  entitled  to  commission  on  sale  of  land  in  proportion 

as  payments  were  collected 366 


CHAPTER  II. 

441.  Broker  preventing  competitive  bidding  not  entitled  to  commis- 

sions       367 

442.  Brokers  cannot  charge  commissions  against  beneficiary 367 

443.  Volunteers 367 

444.  Interference  by  breaking  into  negotiations  started  by  another 

agent     369 

445.  The  first  broker  who  succeeds  is  entitled  to  the  commission ....     370 

446.  Broker  who  was  the  procuring  cause  of  the  sale  is  entitled  to 

compensation    373 


CHAPTER  III. 

447.  Continuity  broken,  and  its  effect  upon  the  rights  of  the  broker .     388 

448.  Sequence  broken,  and  its  effect  upon  the  broker's  right  to  com- 

missions      390 

449.  Consummation  of  contract 391 

450.  Introduction    of    prospective    purchaser 395 

450a.  Broker  entitled  to  compensation  on  furnishing  name  of  pro- 
spective purchaser,  to  owner 397 


XX  TABLE    OF    CONTENTS. 


CHAPTER  IV. 
SECTION 

451.  Effect  of  representations  as  to  the  dimensions  of  the  property 

offered   .....  .:...  ..................................  398 

451a.  Owner  bound  by  representation  of  location  of  land  to  purchaser 

by    his    agent  ......................................  401 

451b.  Sufficient  description  of  property  as  required  by  statute  ......  401 

452.  Purchaser  acting  for  another  ..............................  401 

453.  Apportionment   ..........................................  401 

454.  Defeat  of  broker's  right  to  commissions  ....................  402 

CHAPTER  V. 

455.  Deals  ......  .............................................  412 

456.  Excess  in  price  as  compensation  ..........................  413 

457.  Failure  of  broker  to  sell  ..................................  416 

458.  Failure  to  consummate  contract  of  sales  ..................  416 

458a.  Negotiations  not  constituting  a  contract  broker  not  entitled 

to    commissions  ....................................  421 

459.  Failure  of  sale  by  defect  in  title  ..........................  421 

460.  Failure  of  purchaser  to  carry  out  contract  ................  421 

4GOa.  Broker    employed    to    purchase    entitled    to    commission    for 

services     .......  ....................................  422 

461.  Failure    of    consideration  .................................  422 

462.  Forfeitures  ..............................................  423 


CHAPTER  VI. 

463.  Financial  conditions  ......................................  427 

464.  Financial  responsibility  of  purchaser  ......................  428 

465.  Finding  a  purchaser  .....................................  433 

466.  Gratuities    ..............................................  437 

467.  Goods  exchanged  for  land  ................................  438 

468.  Broker  entitled  to  commissions  in  stock  of  insurance  company  438 

469.  Broker  entitled  to  commissions  though  sale  enjoined  ........  438 

470.  Broker  not  entitled  to  full  commissions  till  price  paid  ........  438 

471.  Broker    not    informing    principal   of    customer    defeats    com- 

missions   ..........................................  439 

472.  Knowledge  by  broker  that  principal  owns  but  part  of  property 

does  not  defeat   commissions  ........................  439 

473.  Litigation  by  third  persons  does  not  defeat  commissions....  439 

474.  Methods  of  earning  commissions  by  broker  ..................  439 

474a.  Broker  employed  to  sell  real  estate  not  required  to  prepare 

contract  of  purchase  ................................  440 


TABLE    OF    CONTENTS.  XXI 
SECTION                                                                                                                                                PAGE 

475.  Broker  as  middleman  may  recover  commissions  from  each  party  440 

476.  Sale  of  mine  not  within  description  defeats   commissions . .  442 
476a.  Broker  not  performing  contract  who  produces  contract  to  buy 

asking    for    abstract    additional 442 

477.  Modification  not  assented  to  by  broker,  does  not  defeat  com- 

missions     *  442 

477a.  When  told  of  prospective  purchaser  by  broker  owner  may  then 

raise  the  price 443 

478.  Modification  in  broker's  presence  did  not  affect 443 

479.  Modification  by  performing  other  services  modifies  right  to 

commissions     443 

479a.  Owner  must  satisfy  broker's  right  to  commission  in  one  of  two 

methods  left  to  exercise 444 

480.  Broker  agreeing  to  take  stock,  cannot  recover  in  money  ...*...  444 

481.  Net  price  to  owner,  broker  does  not  take  excess 444 

482.  Net  price  to  owner,   broker   selling  thereat  not  entitled  to 

any  commissions 445 


CHAPTER  VII. 

483.  Net  price  to  owner  and  note  for  excess  to  broker,  on  vendor's 

refusal   broker   entitled   to   commissions 448 

483a.  Broker  not  entitled  to  commission  when  to  be  paid  by  purchaser 

who  defaulted 449 

484.  Net  price,  broker  entitled  to  excess  from  first  payment  made. .     449 

485.  Where  owner  changed  contract  from  gross  to  net  price  liable 

to  broker   for   commissions 449 

486.  Broker's  commissions  computed  on  actual  sum  received 450 

487.  Failing  to  disclose  that  nominal  is  not  the  real  purchaser  does 

not  defeat  commissions 450 

487a.  Liability  to  broker   for  commissions  depends  upon  the  real 

parties  to  the  bargain 450 

488.  Broker  entitled  to  commissions  where  non-performances  not 

caused   by   his   fault 450 

489.  Where  neither  principal  nor  broker  effecting  sale  had  notice  of 

other  broker's  negotiations  he  is  not  entitled  to  com- 
missions         451 

489a.  Direct  sale  by  owner  to  unknown  broker's  customer  defeats 

latter's    right   to   commission 452 

490.  Principal  selling  before  expiration  of  time  given  broker,  without 

notice,  broker  entitled  to  commissions 452 

491.  Reporting  offer  of  $16,000  instead  of  $15,000  did  not  deprive 

broker  of   commissions . .  452 


TABLE  OF  CONTENTS. 
SECTION  PAGE 

492.  Oral  contract  to  sell  land,  followed  by  written  contract,  entitled 

broker  to  commissions 453 

492a.  Specific  supersedes  prior  indefinite  contract  of  agency 453 

492b.  Parol  contract  cannot  take  property  out  of  hands  of  broker 

held  under  written  one 453 

492c.  Broker's  specific  written  contract  supersedes  ordinary  rule 

as  to  payment  of  commissions 453 

493.  Broker  entitled  to  commissions  for  sale  of  four  houses,  not 

entitled  to  porportionate  amount  for  one 454 

493a.  Broker  entitled  to  commission  for  sale  of  house  in  instalments    454 

494.  Broker  entitled  to  commissions  for  sale  of  lots  not  entitled  to 

same  rate   for   large  body   of   land 454 

495.  Broker  promised  commission  for  selling  part,  entitled  to  same 

rate    for    selling    all 454 

496.  Broker  who  failed  to  sell  all,  entitled  to  commissions  on  sale 

of  part  by  owner  to  customer 455 

496a.  Broker  employed  to  sell  entire  tract  of  land  must  do  so 

to  earn  commission 455 

496b.  On  owner  wrongfully  terminating  contract  to  sell  entire  tract, 

broker  entitled  to  value  of  services  rendered 455 

496c.  Selling  in  different  acreage  portions  from  that  prescribed 

barred  broker  of  commission 456 

496d.  Broker  entitled  to  commissions  when  three-fourths  of  collections 

enough  to  pay  them 456 

497.  Share  of  profits  on  sale  through  sub-agent  not  defeated  by 

unfair  dealing  of  latter 456 

497a.  Broker  entitled  to  share  of  profits  on  resale  of  land  purchased     456 

498.  Commissions  payable  on  sale,  and  not  on  collection  of  deferred 

payments 457 

498a.  Agreement  by  broker  to  wait  for  commission  until  owner  sold 

farm  held  to  mean  for  a  reasonable  time 457 

499.  Commissions  are  due  when  contract  is  made  with  purchaser 

produced    by    broker 457 

499a.  Broker's  commissions  are  earned  when  contract  of  exchange  is 

executed    457 

499b.  Commissions  not  due  until  actual  transfer  made 458 

499c.  Owner  who  refused  to  convey  land  liable  to  broker  for  com- 
missions, though   date  of  settlement   fixed  as   time  of 

payment    458 

499d.  When   lease   not  executed   broker   barred   commission   under 

his  contract 458 

499e.  Where  contract  provided  purchaser  should    pay  broker's  com- 
missions, on  owner's  breach  latter  not  liable  therefor. . .     458 
499f.  Where  broker  guilty  of  fraud  or  misrepresentation  defeating 

sale  not  entitled  to  commission . .  459 


TABLE  OF  CONTENTS. 
SECTION  PAGE 

499g.  Broker  entitled  to  commission  although  agreement  contem- 
plated execution  of  further  contract 459 

499h.  Although  contract  provided  for  payment  of  commission  as 

purchaser  paid,  on  breach  all  became  due 460 


CHAPTER    VIII. 

500.  Broker  entitled  to  commissions  on  actual  payment  by  default- 

ing  vendee 461 

500a.  Broker  limited  to  commissions  on  $1,000  although  property 

later   sold   for   $12,500 462 

501.  Broker's  right  to  commissions  not  defeated  because  to  be  paid 

from    purchase    money 462 

502.  Principal  liable  for  commissions  on  sale  to  customer  at  lower 

price,  unless  fixed  price  required 462 

503.  Where  principal  agreed  to  pay  commissions  upon  receipt  of 

price,   broker  not  entitled   before 463 

503a.  Broker  not  entitled  to  commission  for  contract  to  purchase 

differing    as    to    deferred    payments 464 

504.  Commissions  are  usually  payable  upon  completion  of  trans- 

action   -. 464 

505.  Broker  entitled  to  commissions  although  purchaser  pays  more 

than  he  authorized  him  to  offer 464 

506.  Where  purchaser  defaulted,  broker  entitled  to  commissions  on 

actual  payments 465 

507.  Cases  where  plaintiff  was  held  not  to  be    the  procuring  cause 

of  sale,  and  not  entitled  to  commissions 465 

507a.  Broker  who  is  the  procuring  cause     of  sale  entitled  to  com- 
mission         465 

508.  Where  sale   frustrated   through   failure   to   partition,   broker 

entitled  to  commissions 466 

509.  Partial   performance    entitled    broker   to   recover   neither    on 

contract  nor  on   quantum  meruit 466 

510.  Agent  in  charge  of  real  estate   securing  responsible  tenant, 

entitled  to  recover  on  a  quantum  meruit 467 

511.  On  principal  selling,  broker  could  recover  for  services  on  a 

quantum   meruit 467 

512.  Principal  selling  for  less  than  agreed  price,  broker  entitled 

to  recover  on  a  quantum  meruit    467 

513.  In  the  absence  of  an  express  contract  broker  procuring  a  pur- 

chaser may  recover  on  a  quantum  meruit 468 

513a.  In  absence  of  fixed  rate  measure  of  broker's  compensation  the 

value  of  the  service  rendered 468 


TABLE  OF   CONTENTS. 
SECTION  PAGE 

514.  Demand  by  broker  for  $10,000  to  release  lien  defeated  his 

right  to  commissions 468 

514a.  Owner  entitled  to  counter-claim  for  expenses  of  suit  to  remove 
cloud  on  title  caused  by  broker  recording  contract 
breached  by  his  misrepresentations 469 

515.  First  broker  held  to  have  right  to  commissions  by  second's 

relinquishment    469 

515a.  Waiver  of  variance  in  contract  by  acquiescence 470 

515b.  Owner  accepting  purchaser  waived  requirement  from  broker 

as  to  financial  ability 470 

515c.  Broker  must  prove  financial  ability  of  purchaser  and  ordinarily 

this  is  not  waived  by  owner's  acceptance 470 

515d.  Broker  to  recover  commission  must  show  that  variance  in  pur- 
chaser's contract  was  waived 470 

515e.  Where  owner  paid  second  broker  for  furnishing  purchaser,  first 

having  waived  his  rights,  latter  not  entitled  to  recover     471 
515f.  Waiver  by  party  to  exchange  that  other  party  should  assume 

mortgage  on  former's  premises . . . , 471 

516.  If  authority  to  secure  a  purchaser  is  revocable  broker  securing 

after  barred  commissions 471 

517.  If  the  customer  reserves  the  right  to  withdraw  from  trans- 

action if  title  bad,  if  exercised,  bars  commissions 472 

517a.  On  breach  of  contract  to  exchange  lands  broker  cannot  recover 
from  wrongdoer  the  commission  agreed  to  be  paid  by 
other  party 472 

518.  Unless  exclusive,  rival  broker  not  entitled  to  commissions  on 

sale  by   the  other 472 

519.  Broker  and  sub-agent  stand  in  similar  relations  as  to  compensa- 

tion as  do  principal  and  agent 472 

520.  Sub-agent  entitled  to  share  in  commissions  though  he  violated 

instructions     473 

520a.  Broker  liable  to  sub-agent  though  property  on  sale  found  not 

to  belong  to  vendor 473 


CHAPTER  IX. 

521.  Sub-agent  entitled  to  commissions  for  sale  made  after  revoca- 

tion   of    authority 475 

522.  Sub-agent  denied  recovery  of  unlawful  commissions 475 

523.  Typical  cases  in  which  the  sub-agent  was  held  entitled  to  recover 

share    of    commissions 475 

523a.  Contract  between  agent  and  sub-agent  need  not  be  in  writing. .     476 

524.  Sub-agent  not  entitled  to  recover  of  his  principal  for  sale  made 

at  reduced  price 476 


TABLE  OF  CONTENTS.  XXV 

SECTION  PAGE 

525.  Sub-agent  entitled  to  commissions,  though  he  failed  to  give 

the  name  of  purchaser 476 

526.  Broker  selling  to  railroad  instead  of  to  syndicate  entitled  to 

commissions 477 

527.  Broker  entitled  to  commissions  though  sale  other  than  that 

contemplated 477 

528.  Broker's  right  to  commissions  not  effected  by  owner's  sup- 

positions      477 

529.  Broker's  erroneous  advice  as  to  liability  for  sewer-tax  defeated 

right  to   commissions 477 

530.  Broker  failing  to  name  purchaser  in  telegram  to  principal  does 

not    defeat    commissions' 478 

530a.  Broker  entitled  to  compensation  though  he  withheld  buyer's 

name  from  principal 478 

531.  Where  vendor  sought  to  vary  terms,  and  purchaser  refused  to 

take,  broker  entitled  to  commissions 478 

532.  Broker  entitled  to  commissions  on  bringing  parties  together, 

though  they  contract  on  different  terms 479 

532a.  Broker   contracting  for   commission   on  list  price   entitled  to 

same  rate  on  reduced  price 480 

533.  On  making  a  sale  defect  in  the  title  does  not  deprive  broker 

of   right   to   commissions 480 

534.  Where  customer  exercises  right  to  withdraw  if  title  defective, 

broker   barred   commissions 481 

535.  Where  broker  is  to  have  part  of  the  profits  on  the  sale,  not 

entitled  where  it  fails  by  defect  in  title 481 

536.  Payment  of  commissions  to  broker  may  depend  on  the  transfer 

of    title 482 

536a.  Broker's    compensation    due    on    breach    by    vendor    although 

postponed  by  contract  till  title  passed 482 

537.  Broker  not  entitled  to  commissions  where  customer  refused  to 

complete  purchase  on  account  of  a  supposed  defect  in  the 
title    482 

538.  Whether  principal  or  another  holds  the  title,  broker  on  produc- 

ing buyer  entitled  to  commissions 48S 

539.  Where  sale  defeated  by  want  of  title,  which  he  knew,  broker 

barred  commissions 483 

540.  Ignorance  of  title  by  holder  of  record  title  did  not  defeat 

broker's  right  to  commissions 483 

541.  Where  broker  produced  purchaser  and  sale  failed  by  a  dispute 

over  taxes,  broker  barred  commissions 484 

542.  After  memorandum  contract  signed,  and  purchaser  refused  to 

pay  water-tax,  broker  entitled  to  commissions 484 

543.  Unavailing  efforts  to  perform  do  not  entitle  broker  to  com- 

missions   .  484 


TABLE  OF  CONTENTS. 
SECTION  PAGE 

544.  To  entitle  broker  to  commissions  for  a  sale  his  negotiations 

must  be  uninterrupted 485 

545.  Undisclosed  agreement  to  divide  commissions  with  purchaser 

does  not  bar  broker's  right  thereto 485 


CHAPTER  X. 

546.  Broker  not  entitled  to  commissions  until  he  has  performed  his 

undertaking     487 

546a.  In  some  States  reasonable  compensations  may  be  recovered  for 

partial  performance  of  entire  contract 487 

547.  Broker   not   entitled   to   commissions  for   procuring   contract 

subject  to  unauthorized  condition 487 

547a.  Broker  entitled  to  commission  on  alternative  contract,  which 
did  not  bind  the  buyer,  even  although  he  approved  the 
title  488 

548.  Broker  obtaining  purchaser  for  vested  remainder  on  different 

terms    barred    commissions 488 

549.  Broker  does  not  earn  commissions  if  contract  to  be  void  if 

first   payment   fails 488 

549a.  Broker  acquiring  interest   in  purchase  and  contract  beyond 

authority,  the  same  is  void 489 

550.  Variance  as  to  name  of  ranch  sold  did  not  deprive  broker  of 

right   to   recover    commissions 489 

551.  Broker  not  entitlted  to  commissions  for  contract  too  vague  for 

enforcement,  on  failure  of  customer  to  take 489 

552.  Withdrawal  of  land  from  sale  entitled  broker,  under  contract 

to  commissions 490 

553.  Withdrawal  and  sale  by  owner  in  good  faith  to  customer  bars 

broker's    commissions 490 

554.  Principal  paying  commissions  to  broker  before  purchaser  with- 

draws cannot  recover  same 490 

554a.  Owner  allowed  recovery  of  withheld  money  from  broker's  barred 

recovery  of  commissions  paid 491 

555.  Broker    entitled    to    commissions    where    sale    failed    because 

rights   of  two  heirs  were  not  acquired 491 

556.  Where  purchaser  is  in  default,  broker  not  entitled  to  com- 

missions       491 

557.  Wihen  commissions  are  earned  by  broker 492 

558.  When  commissions  are  not  earned  by  broker 504 


TABLE  OF  CONTENTS.  XXVli 


PART    V. 

PLEADINGS,   PRACTICE  AND  JUDICIAL  CONSTRUCTIONS 
AND    INTERPRETATIONS. 


CHAPTEE    I. 

SECTION  PAGE 

559.  Doctrine  of  public   policy 513 

560.  Acquiescence  and  waiver,  and  effect  upon  broker's  rights 517 

561.  Advertising  and  advertisements 521 

562.  Accord  and  satisfaction 522 

563.  Breach  of  contract 523 

564.  Correspondence    '  525 

565.  Advances    526 

566.  The    borrower 526 

567.  Acceptances     527 

568.  Conformity    529 

569.  Costs 530 

570.  Conditions  precedent  to  right  to  commissions.. 530 


CHAPTER  IL 

571.  Courts    534 

572.  Equity    535 

573.  Exceptions     540 

574.  Forgery    540 

575.  Loan  payable  in  gold 541 

576.  Licenses    541 

577.  Limitations  and  restrictions 546 

578.  Broker  acting  as  a  mere  middleman 546 

578a.  Broker  masquerading  as  a  middleman  who  acquired  interests 

adverse  to  owner  forfeits  commission  and  must  account 

for    ill-gotten    gains 547 

579.  Unless  mistake  be  pleaded  and  proved  each  purchaser  bound  for 

the    whole    commission 548 

580.  Immediate  notice  means  in  a  reasonable  time 548 

580a.  The  word  "able"  in  statute  held  to  mean  "financially  able". . .  548 

581.  Principal  may  remain  neutral  as  to  brokers'  claims 549 

582.  Proposition  inconsistent  with  negative  to  prove 549 


TABLE   OF    CONTENTS. 

SECTION  PAGE 

583.  Parol  contract  of  agent  binds  unnamed  principal 550 

583a.  Contracts    between   brokers   to   share   commissions    exempted 

from  being  in  writing 550 

584.  Broker  to  share  in  profits  for  sales  not  partners 551 

548a.  Broker    not    meeting    earlier    demands    not    precluded    from 

sharing  profits  when  paying  share  of  note  when  due..     551 

585.  To  pay  commission  on  withdrawing  land  strictly  construed. . . .     551 

586.  In  trying  to  effect  a  sale  of  real  estate,  party  may  extrav- 

agantly extol 551 


CHAPTER  III. 

587.  Quantum  meruit 553 

588.  Broker  has  right  of  action  against  defaulting  purchaser  for  lost 

commissions  557 

588a.  Broker's  right  to  recover  from  vendee  price  paid  for  property 

purchased  for  him ; 557 

589  No  right  in  equity  arises  out  of  a  verbal  contract  for  the 

sale  of  land 557 

590.  Statute  of  frauds 557 

591.  Real  estate  agent  not  liable  for  failure  to  remove  snow  from 

sidewalk    563 

592.  Seals,  and  the  necessity  for  their  use 564 

593.  When  tender  of  written  agreement  by  purchaser  not  necessary  564 

594.  Employment  of  broker  to  measure  land  does  not  sustain  claim 

of  broker  for  selling 564 

695.     Where  title  taken  by  broker  to  land  purchased  principal  may 

tender  amount  and  demand  deed 565 

596.  When  not  necessary  for  broker  to  show  vendor  had  a  clear  title    565 
fi'.'ii.-i.  Broker  entitled  to  commission  under  contract  upon  corporate 

employer  acquiring  title  to  land 565 

596b.  Marketable  title  in  fee  simple  necessary  to  give  broker  right 
to  commissions,  in  absence  of  binding  contract  with 
purchaser  565 

597.  Contract  of  sale  requiring  owner  to  furnish  abstract  of  title  not 

within    authority    of    broker 566 

598.  A  custom  or  usage  must  be  general  before  a  court  will  declare 

ite  existence  as  a  matter  of  law 566 

599.  Where  a  usage  is  proved,  the  law  raises  a  presumption  that  the 

agent  contracted  with  reference  thereto 566 

600.  Unconstitutionally  of  statute  requiring  contract,  employing 

broker  to  be  in  writing 567 

601.  Undisclosed    principal 567 


TABLE    OF    CONTENTS.  XXIX 

SECTION  PAGE 

60 la.  Postal  card  insufficient  under  statute  to  constitute  contract 

for  broker's  commissions 568 

602.  Where  broker  must  be  authorized  in  writing,  contract  without 

unenforceable  568 

602a.  Manner  in  which  contracts  with  broker  to  sell  real  estate  should 

be  construed 570 

602b.  Broker  entitled  to  commission  when  owner  and  customer 

reach  an  agreement 570 

602c.  Broker  entitled  to  commission  on  sale  on  contract  held  a 

contract  to  sell  and  not  of  agency 570 

602d.  Contract  signed  by  one  and  later  by  all  tenants  in  common 

held  sufficient  for  broker's  commissions 570 

602e.  Contract  of  employment  must  be  in  writing  whether  broker 

or  middleman 571 

603  Broker  cannot  recover  commissions  where  contract  unenforeable  571 
603a.  Contract  of  employment  to  purchase  land  not  required  to  be 

in  writing 571 

604.  Contract  by  unlicensed  broker  not  absolutely  void 571 

605.  Agreement  to  hire  auctioneer  to  sell  land  need  not  be  in  writing    572 

606.  Memoranda  held  insufficient  to  meet  the  requirements  of  the 

statute  of  frauds 572 

607.  Statute  of  limitations 573 

608.  Eival    brokers; 574 

609.  If  purchaser  willing  to  perform,  statute  of  frauds  not  available 

to  defeat  broker's  commissions 574 

610.  Reasonable   price    inferred    by    law 574 

61 1.  What  is  a  reasonable  time 574 

612.  Broker's  employment  continued  for  a  reasonable  time 575 

612a.  Owner  allowed  reasonable  time  after  purchaser  procured  to 

prepare  abstract,  deed,  etc 576 

612b.  Broker's  contract  of  employment  required  owner  to  designate 

tracts  and  fix  prices  and  terms  within  a  reasonable  time  576 
612c.  Favorable  reply  of  owner  to  broker's  inquiry  bound  former  for 

reasonable  time  for  broker  to  find  a  purchaser 576 

612d.  Broker's  contract  of  employment  in  March  held  not  ended 

in  August 576 

613  Contract  to  pay  $1,000,000  continued  for  a  reasonable  time 576 

614.  When    reasonable    time    immaterial 577 

614a.  When  six  months  not  unreasonable  delay  in  accepting  broker's 

offer  for  finding  a  purchaser 577 

615.  In  absence  of  express  agreement,  reasonable  value  of  services 

recoverable    577 

616.  Reasonable    compensation 578 

617.  Not  necessary  for  broker  to  put  defendant  in  default,  before 

suing  for  compensation 578 


XXX  TABLE    OF    CONTENTS. 

SECTION  PAGE 

618.  Ratification  not  shown  by  acquiescence  without  knowledge..  578 

61 8a.  Reply  of  owner  that  did  not  constitute  a  ratification 579 

618b.  When    knowledge    of    broker    withheld    from    purchaser    did 

not  bind  latter 579 

619.  Ratification  by  acceptance  of  offer  to  broker 579 

620.  Ratification  cures  any  defect  in  agent's  appointment 579 

620a.  Sufficient  allegation  of  ratification 579 

621.  Ratification  by  principal  executing  contract 580 

622.  Ratification  by  acceptance  of  proceeds 580 

623.  To  constitute  ratification  of  act  of  attorney  knowledge  on  part 

of  principal  immaterial 580 

624.  It  is  an  essential  prerequisite  to  ratification  that  principal 

had  knowledge  of  unauthorized  contract 581 

624a.  Sale  by  owner's  son  at  reduced  price  to  broker's  customer 

barred  broker's  commission 581 

625.  Tender  not  necessary  to  entitle  broker  to  recover  on  principal 

refusing    purchaser 581 


CHAPTER  IV. 

626.  Custom  or  usage 583 

626a.  Custom  insufficient  to  supply  lack  of  employment  as  broker. . . .  585 

627.  Defendant  cannot  object  where  evidence  shows  sale  for  less 

than  broker  claims 585 

628.  Presumptions     585 

629.  Assumpsit 587 

630.  Actions  between  principals  and  agents 587 

631.  Common    counts 592 

632.  Petition,  ultimate  facts  must  be  pleaded 593 

632a.  Petition  in  action  to  recover  commissions 593 

632b.  When  right  of  action  for  commissions  accrues  to  broker 595 

632c.  In  action  for  division  of  commission  broker  without  agree- 
ment could  not  enforce  payment -. 595 

632d.  Broker  entitled  to  recover  commission  for  loan  when  he  shows 

he  procured  person  able  and  willing  to  lend 596 

632e.  Petition  failing  to  show  broker  procured  purchaser  able,  etc., 

or  breach  by  seller,  subject  to  demurrer 596 

633.  Petition  alleging  failure  to  exchange  defective 596 

633a.  In  action  between  brokers,  facts  which  stated  a  cause  of  action  596 

634.  Petition  alleging  sales  to  persons  defective 597 

635.  Petition  alleging  deed  of  trust  not  defective 597 

635a.  Complaint  not  objectionable  for  failing  to  show  that  plaintiff 

found  a  purchaser  on  terms  offered 597 

636.  Petition  that  broker  have  over  certain  sum  when  not  breached  598 


TABLE   OF    CONTENTS.  XXXI 

SECTION  PAGE 

636a.  When   proper   to   withdraw   case   from    jury    and   enter   a 

judgment  of   dismissal 598 

637.  Petition  on  express  contract  may  recover  when 599 

637a.  Necessary  allegations  and  proof  to  enable  broker  to  recover  com- 
missions for  effecting  a  sale  or  exchange 599 

637b.  Petition  sufficiently  setting  out  contract  with   firm  of  real 

estate  brokers  to  sell  land 599 

638.  Cannot  recover  on  proof  of  substituted  contract 600 

639.  Failing  to  prove  agreed  may  recover  reasonable 600 

640.  Petition  good  against  demurrer 600 

640a.  Petition  for  commissions  not  demurrable  for  failing  to  allege 

customer  ready,  able  and  willing  to  purchase 600 

641.  When  agent  may  recover  without  showing  performance 601 

641a.  Broker's    action    for    commission    for    breach    of    defendant's 

contract  therefor  did  not  need  to  allege  fraud 601 

642.  To  recover  money  broker  refuses  to  pay,  need  not  allege  he  had 

authority  to  collect 602 

642a.  Broker  not  liable  to  principal  for  money  refunded  on  rejected 

contract 602 

642b.  Broker  receiving  money  for  his  principal  not  liable  to  repay  on 

suit  by  party  entitled  thereto 602 

642c.  Circumstances  under  which  party  entitled  to  money  may  sue 

agent  for   its  recovery 603 

643.  Alleging  sale  by  owner  ending  contract  demurrable 603 

644.  Alleging  notice  of  double  employment  not  demurrable 604 

645.  Bringing  parties  into  touch  insufficient 604 

646.  Alleging  defendant  accepted  services  when  good 605 

647.  Failing  to  show  written  contract,  rest  immaterial 605 

648.  Incomplete  copies  of  unsigned  letters  demurrable 605 

649.  Petition  for  commissions  on  passing  of  title  defective 606 

649a.  Petition  which  failed  to  state  a  cause  of  action .' 607 

649b.  Broker's  failure  to  state  performance  of  contract  stated  no 

cause  of  action 607 

650.  For  procuring  tenant  who  purchased  in  not  alleging  employment 

to  sell 607 

G50a.  Complaint  defective   for   failure   to  properly   state   contract 

of    employment 608 

651.  Agreement  to  pay  as  commission  all  over  enough 608 

652.  Petition  for  commissions  for  selling  bonds  defective 608 

653.  Out  of  last  cash  payment  must  aver  such  payment 608 

653a.  Petition  for  commission  from  funds  collected  must  aver  same 

was   adequate   for   the   purpose 609 

654.  Not   alleging   agreement   stated   made   defective 609 

655.  Asking  judgment  for  excess  demurrable 609 


TABLE  OF  CONTENTS. 


SECTION 
656.    Petition  sufficient  without  alleging  sale  for  the  purpose  of  de- 

frauding   plaintiff  ..................................  610 

C56a.  Petition  not  defective   as   alleging  contract   in   violation   of 

broker's    duty  ......................................  610 

656b.  Petition  against  broker  for  fraud  in  exchange  of  land  ......  610 

656c.  Petitions   held   demurrable  ................................  611 

656d.  Petitions   held   sufficient  ..................................  613 

656e.  Parties   to  action  ........................................  614 


CHAPTER  V. 

657.  Interpleader,    when    allowed 615 

658.  Interpleader,  when  not  entitled  thereto 616 

659.  Demurrer  lies  to  petition  against  broker  for  failure  of  title, 

when 617 

660.  Demurrer    lies   to   allegation    that    defendant    neglected    to 

collect    rents 617 

661.  Demurrer  lies  to  petition  where  only  partial  copies  of  letters 

constituting  contract  are  given 617 

662.  Demurrer  sustained  where  plaintiff  sought  to  recover  for  loss 

of  commissions  from  opposite  party 617 

663.  Demurrer   to   answer   lies    for    not   showing   modification    of 

written    contract 618 

664.  In  Nebraska,  demurrer  lies  to  petition  not  showing  agent's 

appointment  was   in  writing 618 

665.  Demurrer  held  improperly  sustained  in  action  to  recover  com- 

missions paid  recreant  agent 618 

665a.  Demurrer  to  the  evidence  and  general  demurrers 619 

666.  Motion  to  dismiss  held  properly  denied 620 

666a.  Motion  which  should  have  been  granted 620 

667.  Amendment  to  set  up  unconscionable  demand  refused 620 

667a.  Waiver  by  failure  to  object  to  amended  answer 620 


CHAPTER  VI. 

668.  Amendment  proper  to  allow  general  denial  where  answer  set 

up  statute  of  frauds 621 

669.  Amendment    allowing    correction    of    written    contract    does 

not  cause  a  departure 621 

670.  Amendment,  when  error  to  refuse 622 

671.  Amendment,  error  to  allow  to  allege  exercise  of  option  and 

completion  of  sale 622 

672.  Amendment  to  answer  held  improper  and  misleading 622 


TABLE  OF   CONTENTS.  XX2111 

SECTION  PAGE 

673.  Amendment  of  complaint,  at  trial,  in  furtherance  of  justice, 

held   proper 623 

674.  Amendment    properly    allowed    plaintiff    to    claim    return    of 

commissions  for   fraud 623 


CHAPTER  VII. 
» 
675-703h.    Defenses    624-642 

CHAPTER    VIII. 

704-704a.     What  are  not  departures 643-644 

705-728d.     Examples  on  the  question  of  burden  of  proof 644-657 

CHAPTER  IX. 
729-761d.     Evidence — Admissible    658-678 

CHAPTER  X. 

762-783d.     Evidence— Inadmissible     679-691 

i 
CHAPTER  XI. 

784-809c.      Evidence — Immaterial    and    irrelevant 692-703 

CHAPTER  XII. 
810-838b.     Evidence  in  general 704-716 

CHAPTER    XIII. 
839-862c.     Estoppels 717-727 


XXXIV 


TABLE    OF    CONTENTS. 


CHAPTER  XIV. 

SECTION  PAGE 

863.  Dismissal,  when  proper    728 

864.  Dismissal,  when  error    728 

865.  Non-suit     729 

866.  Prima  facie  case 729 

867-873a.     Issues   730-733 

874-887g.    Variances   733-742 


CHAPTER  XV. 


888-929d.     Questions  to  he  determined  by  the  jury 743-765 


CHAPTER   XVI. 


930-1047h.      Instructions   to   juries 766-8.40 


CHAPTER    XVII. 


1048-1053c.     Findings  by  the  court 841-867 

1054-1064d.     Verdicts    867-873 

1065-1071d.     Judgments    873-878 


CHAPTER  XVIII. 


1072-1078k.     Error     879-886 

1079-1132.       Judicial  constructions  and  interpretations 886-927 


TABLE    OF    CONTENTS.  XXXV 


PART    VI. 

FORMS    FOR    LISTING,  BROKERAGE    AND    OTHER 
CONTRACTS. 


FOBM  PAGE 

No.    1 — Listing  of  property  with  agent  for  sale 931 

No.    2 — Listing  of  property  with  agent  for  sale   (another  form)  ....  931 

No.    3 — Exclusive  agency  for  the  sale  of  real  estate 932 

No.    4 — Eeal  estate  board  contract  of  exclusive  agency  to  sell  real 

estate 933 

No.    5 — Uniform  sale  contract  adopted  by  the  Cincinnati  Real  Estate 

Board  934 

No.    6 — Uniform  contract  to  procure  a  purchaser   adopted  by  the 

Cincinnati  Eeal  Estate  Board 935 

No.    7 — Employment  of  agent  to  secure  a  loan 936 

No.    8 — Power  of  attorney  to  sell   lands 936 

No.    9 — Power   of  attorney  to  lease  lands 937 

No.  10 — Contract  for  the  sale  of  real  estate 938 

No.  11 — Agreement  for  sale  and  purchase  of  land 939 

No.  12 — Agreement  for  the  sale  of  land,  with  special  conditions 941 

No.  13 — Agreement  for  sale,  with  special  conditions   (short  form)..  942 
No.  14 — Agreement   for   the   sale  of   land,    with    provisions   against 

nuisances 942 

No.  15 — Agreement  for  the  purchase  of  farm  land  on  long  time....  943 
No.  16 — Agreement  for  the  purchase  of  land,  with  provision  for  the 
payment  of  purchase  money  by  installments,  the  pur- 
chaser  becoming   tenant    of    the   vendor 945 

No.  17 — Sale  of  lot  on  weekly  or  monthly  payments 947 

No.  18 — Agreement  for  the  sale  and  purchase  of  a  dwelling-house..  948 
No.  19 — Agreement   to   purchase,   subject   to   a  mortgage  which   the 

purchaser  assumes 950 

No.  20 — Contract  of  sale  of  fee  simple  or  leasehold  of  real  estate. .  951 
No.  21 — Sale  and  purchase,  where  part  of  purchase  money  is  paid 

by    mortgage 952 

No.  22 — Agreement  for  the  sale  and  purchase  of  land 953 

No.  23 — Agreement  for  sale,  with  lease  clause 954 

No.  24 — Agreement  for  a  conditional  sale  of  property 955 

No.  25 — Agreement  for  the  sale  of  building  lot,  with  option  to  pur- 
chase  adjoining   lots 958 

No.  26 — Agreement  that  purchaser  may  retain  part  of  purchase  money 

until  a  defect  in  the  title  is  removed 959 


XXXVI  TABLE  OF  CONTENTS. 

FOBM  PAGE 

No.  27 — Receipt  for  deposit  by  purchaser 960 

No.  28 — Agreement  to  be  signed  by  a  purchaser  of  land  at  auction . .  960 
No.  29 — Agreement  to  be  signed  by  an  auctioneer  after  a  sale  of  land 

at  auction 960 

No.  30 — Agreement  for  exchange  of  properties 961 

No.  31 — Agreement  for  the  exchange  of  parcels  of  land 962 

No.  32 — Agreement  for  the  sale  of  building  lots,  the  vendor  to  make 

advances  963 

No.  33 — Agreement  for  exchange  of  real  estate 967 

No.  34 — Agreement  for  the  sale  of  standing  timber 968 

No.  35 — Agreement  for  the  sale  of  crop  of  grass 968 

No.  36 — Agreement  for  the  sale  of  a  growing  crop  of  fruit 969 


PART  I. 
THE  CONTRACT  OF  AGENCY. 


xxxvil 


AMERICAN  LAW  REAL 
ESTATE  AGENCY 


CHAPTER  I. 

SECTION.  SECTION. 

1.  Who    are    capable    of    becoming        8.    Who  is  not  a  broker. 

principals  and  agents.  8a.  Definition  of  term  "Brokerage." 

2.  Power  of  delegating  authority.  9.    Licenses. 

3.  Inherent     power     of     becoming      10.    How  brokers  are  appointed. 

agents.  11.    Employment  of  sub-agents. 

3a.  Agent  distinguished  from  broker.       lla.  When  not  employed  sub-agent  not 

4.  Personal  acts  that  are  undelega-  entitled  to  compensation. 

table.  lib.  Sub-agent  when  illegally  appointed 

5.  Acts  that  can  not  be  sub-dele-  can  not  bind  principal  to  pay 

gated.  commission. 

6.  Special  and  general  agency.  12.    Employment  of  broker,   and  its 

7.  Agents  who  are  termed  brokers.  limitations. 

Sec.  1.    Who  are  capable  of  becoming  principals  and  agents. 

— In  general,  it  may  be  said  that  every  person  is  capable  of  be- 
coming a  principal  or  an  agent.    Mechem  on  Ag.,  Sec.  43. 

Sec.  2.    Power  of  delegating  authority. 

Principals  are  capable  of  delegating  authority  to  others  to  act 
in  their  behalf  and  for  their  interests.  In  general,  whenever  a 
person  has  power  to  do  a  thing  he  may  do  it  by  an  agent,  and 
every  person  of  full  age,  free  from  disabilities,  has  complete 
capacity  for  this  purpose;  but  infants,  in  some  States — to  some 
extent — married  women,  idiots,  lunatics,  and  other  persons  not 
sui  juris,  are  either  wholly  or  partially  incapable  of  appointing 
agents.  An  infant  may  authorize  another  to  do  an  act  which  is 
for  his  benefit,  but  he  can  not  authorize  him  to  do  an  act  which 
is  to  his  prejudice.  Story  on  Agency,  Sec.  6 ;  Mechem  on  Agency, 
Sees.  18,  43,  47,  54,  56. 


2  AMERICAN   LAW  REAL   ESTATE   AGENCY. 

Sec.  3.    Inherent  power  of  becoming  agents. 

Almost  all  persons  are  capable  of  becoming  agents.  It  is  not 
necessary  for  a  person  to  be  sui  juris,  or  capable  of  acting  in  his 
own  right,  in  order  to  qualify  himself  to  act  for  others.  Story  on 
Agency,  Sec.  7 ;  Mechem  on  Agency,  Sec.  57. 

Sec.  3a.    Agent  distinguished  from  broker. 

One  who  is  given  power  to  examine  property  and  determine 
whether  a  trade  for  other  property  should  be  made,  and  who 
is  not  employed  simply  to  bring  the  parties  together,  is  an 
agent  and  not  a  broker.  Huss  v.  Ford,  197  111.  App.  199. 

In  practice,  the  distinction  drawn  has  disappeared.  When 
employed  strictly  to  find  a  purchaser,  to  bring  the  parties 
together,  and  to  have  nothing  to  do  with  the  negotiations,  the 
agent  or  broker  is,  while  so  employed,  a  mere  middleman. 

Sec.  4.    Certain  acts  are  personal  in  their  nature,  and  the  au- 
thority confided  can  not  be  sub-delegated. 

In  general,  what  a  person  sui  juris  may  do  himself,  he  may 
delegate  authority  to  'another  to  do  for  him ;  yet  there  are  excep- 
tions ;  thus,  although  a  person  may  do  an  unlawful  act,  it  is  clear 
that  he  can  not  delegate  authority  to  another  person  to  do  it ;  for 
it  is  against  the  policy  of  the  law  to  allow  any  such  authority, 
and  therefore  the  appointment  is  utterly  void ;  it  imports  neither 
duty  nor  obligation,  nor  responsibility  on  either  side;  although 
it  may  involve  both  in  punishment.  Story  on  Ag.  Sec.  11 ;  Me- 
chem on  Ag.  Sees.  18,  19,  20.  Compare  Sec.  987. 

Sec.  5.    Certain  acts  are  personal  in  their  nature,  and  cannot 
be  sub-delegated. 

For  it  is  a  personal  trust  or  confidence,  and  therefore  by  impli- 
cation prohibited  from  being  delegated ;  as,  if  a  man  has  a  power 
given  to  him  by  the  owner  to  sell  an  estate  or  to  make  leases  for 
him,  he  can  not  act  by  an  attorney  or  agent,  for  it  is  a  personal 
trust.  The  same  is  true  if.  by  will,  an  executor  has  power  given 
to  him  to  sell  property,  wkson  v.  Mason,  158  111.  304,  42  N. 
E.  134.  The  same  rule  applies  to  a  broker,  for  he  can  not  delegate 
his  authority  to  another  to  sign  the  contract  on  behalf  of  his 
principal,  without  the  assent  of  the  latter,  for  a  personal  trust 


CONTRACT  OF  AGENCY.  3 

and  confidence  is  reposea  in  him.  Story  on  Ag.  Sees.  12  and  13 : 
Foss  Inv.  Co.  v.  Ater,  49  Wash.  446,  95  P.  1017;  Mechem  on 
Ag.  Sec.  19.  It  follows,  that  where  the  broker  'a  power  contains 
no  power  of  substitution,  he  can  not  delegate  his  authority  to 
another.  Kilpatrick  v.  Wiley,  197  Mo.  123,  95  S.  W.  213. 
A  broker  whose  employment  involves  the  exercise  of  dis- 
cretion is  without  authority  to  sub-delegate  his  authority  to 
another;  however,  when  the  act  to  be  done  is  ministerial  or 
mechanical,  the  agent  may  employ  another  to  do  it.  Ryer  v. 
TurJcel  (N.  J.  Err.  &  App.),  70  A.  68.  Compare  Sec.  987. 

Rule  that  an  agent  cannot  delegate  a  trust  or  discretion  to 
another  does  not  prohibit  a  real  estate  broker  from  employ- 
ing others  for  services  involving  no  discretion  or  judgment. 
Jackson  v.  Brower,  167  P.  6,  22  N.  M.  615. 

Sec.    6.    Agency   is   divided   into   two   classes — special   and 
general. 

Agency  is  divided  into  two  divisions ;  (1)  Special;  (2)  General 
Agency.  A  special  agency  particularly  exists  when  there  is  a 
delegation  of  authority  to  do  a  single  act.  A  general  agency 
particularly  exists  when  there  is  a  delegation  of  authority  to  do 
all  acts  connected  with  a  particular  trade,  business  or  employ- 
ment; thus,  a  person  authorized  by  his  principal  to  execute  a 
particular  deed,  or  to  sign  a  particular  contract,  or  to  procure  a 
purchaser  for  certain  real  estate,  is  a  special  agent.  Story  on 
Ag.  Sec.  17;  Mechem  on  Ag.  Sec.  6.  Several  instances  of  special 
agency  or  employments  do  not  constitute  a  general  agency.  Angle 
v.  Miss.  etc.  R.  Co.,  9  Iowa,  487,  502.  A  person  who  is  authorized 
by  his  principal  to  execute  all  deeds  and  sign  all  contracts  re- 
quired in  a  particular  trade,  business,  or  employment,  is  a  general 
agent  in  that  trade,  business  or  employment.  Story  on  Ag.  Sec. 

17;  Mechem  on  Ag.  Sec.  6;  Sampson  v.  Hermstrom,  190  111.  App. 
12 ;  Herrigan  v.  Dodge,  103  S.  E.  919,  216  Miss.  461 ;  Daugherty 
v.  Leewright,  174  S.  W.  841,  —  Tex.  Civ.  App.  — ;  Swift  v. 
Erwin*  148  S.  W.  267,  104  Ark.  459. 


4  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  7.  Agents  employed  to  buy  or  sell  real  estate,  to  nego- 
tiate exchanges  thereof,  to  procure  leases,  options  and 
loans,  are  usually  termed  brokers. 

Agents  employed  to  buy  or  sell  real  estate,  to  negotiate  ex- 
changes thereof,  to  procure  leases,  options  and  loans,  are  usu- 
ally termed  brokers.  Mechem  on  Ag.  Sec.  934.  "A  broker  is 
one  who  is  engaged  for  others  on  a  commission  to  negotiate 
contracts  relative  to  property,  with  the  custody  of  which  he 
has  no  concern."  Braun  v.  Chicago,  110  111.  186;  Kramer  v.  Bliss, 
88  Va.  456,  13  S.  E.  914;  Younkerv.  W.  U.  Tel.  Co.,  123  N.  W.  577, 
146  Iowa,  499;  Morehouse  v.  Winter,  150  111.  App.  290;  Button 
v.  Cummings  &  Kill  Cheese  &  Butter  Co.,  159  S.  W.  950,  155 
Ky.  465;  Oregon  Home  Builders  v.  Montgomery  Inv.  Co.,  184 
P.  487,  —  Or.  Sup.  — ;  Gile  v.  Tautakawa,  187  P.  323,  —  Wash. 
Sup.  — .  Another  definition  is,  "Brokers  are  persons  whose 
business  it  is  to  bring  buyer  and  seller  together;  they  need 
have  nothing  to  do  with  the  negotiation  of  the  bargain." 
Hartley  v.  Anderson  (Pa.  Supreme),  24  A.  675;  Mechem  on  Ag. 
Sec.  13.  The  latter  clause  designates  those  agents  known  as 
middle-men,  whose  presumed  aloofness  from  partisanship  con- 
fers upon  them  certain  privileges.  See  Sec.  475.  A  "broker" 
is  one  engaged  in  making  contracts  for  others  relating  to  prop- 
erty not  in  his  custody,  he  acting  in  a  sense  as  agent  for  both 
parties;  and  a  salaried  agent,  not  acting  for  a  fee  or  commis- 
sion, is  not  a  broker.  Rodman  v.  Manning  (Or.  Sup.  '09),  99  P. 
657,  1135. 

As  a  general  rule,  the  broker  is  a  special  agent  for  a  single 
object,  and  he  cannot  bind  his  principal  beyond  the  limit  of  the 
authority  conferred  upon  him.  Fruit  Auction  Co.  v.  F.  Quattro- 
chi  <&  Son,  200  S.  W.  700,  —  Mo.  App.  — .  A  person  whose  busi- 
ness is  to  bring  buyer  and  seller  together,  though  he  act  as 
such  in  but  a  single  transaction,  is  a  "broker"  within  Civ. 
Code,  Sec.  124,  sub.  6,  requiring  brokers'  contracts  to  sell  real 
estate,  or  some  memo  thereof,  to  be  in  writing.  Eaton  v.  Yount, 
191  P.  1009,  —  Cal.  App.  — . 

One  who  negotiates  the  sale  of  real  property,  a  person  en- 
gaged in  the  business  of  procuring  purchasers  or  sales  of  lands 
for  third  persons  upon  a  commission  contingent  upon  success. 
33  Cyc.  1557. 


THE  CONTRACT  OP  AGENCY.  5 

Sec.  8.    Who  is  not  a  broker. 

A  salaried  agent  who  does  not  act  for  a  fee  or  rate  per  cent, 
for  others  is  not  a  broker.  Portland  v.  O'Neill,  1  Oregon,  218; 
Rodman  v.  Manning  (Or.  Sup.  '09),  99  P.  657,  1135.  A  trust 
company,  though  authorized  tc  buy  and  sell  real  estate,  is  not  a 
broker.  Cr.  v.  Tr.  Co.,  211  Pa.  51,  60  A.  551.  A  person  em- 
ployed to  find  a  purchaser  for  certain  property,  and  to  run  it 
for  a  share  of  the  net  profits,  held,  a  servant  and  not  a  broker. 
McMana  v.  Dyer,  176  S.  W.  1101,  —  Mo.  App.  — . 

Sec.  8a.    Definition  of  term  "brokerage." 

Brokerage  is  equivalent  to  compensation  for  services  rendered. 
Myers  v.  Dean,  11  Misc.  368,  371,  32  N.  Y.  S.  237 ;  U.  S.  v.  Fisk, 
25  Fed.  Gas.  No.  15,  104. 

Sec.  9.    Licenses. 

In  some  States  a  real  estate  broker,  before  he  can  lawfully 
engage  in  such  business,  must  procure  a  license.  Natt  v.  Papet, 
15  La.  306. 

Sec.  10.     How  brokers  are  appointed. 

In  the  absence  of  a  statute  to  the  contrary,  the  employment  of 
a  broker  for  the  purchase  or  sale  of  real  estate  is  a  contract  for 
his  services  and  may  be  by  parol.  Rathburn  v.  McLay,  76  Conn. 
308,  56  A.  571 ;  Brown  v.  Eaton,  21  Minn.  409,  528 ;  Friedman  v. 
Shuttle,  85  P.  726  (Ari.  Sup.  '06,  9  L.  R.  A.,  N.  S.)  933 ;  Forrester- 
Duncan  Land  Co.  v.  Evatt  (Ark.  '09),  119  S.  W.  282;Hannon  v. 
Prentiss,  124  Mich.  417,  83  N.  W.  102;  Spengeman  v.  Palestine 
Bldg.  Assn.,  60  N.  J.  Law,  357,  37  A.  723 ;  McCurry  v.  Hawkins, 
83  Ark.  242,  103  S.  W.  600 ;  Hutto  v.  Stough,  157  Ala.  566,  47  S. 
103 ;  Shadwick  v.  Smith,  143  S.  W.  1027,  147  Ky.  159 ;  Womack 
v.  Douglas,  163  S.  W.  1130,  157  Ky.  716 ;  Palmer  v.  Lowder,  83 
S.  E.  464,  167  N.  C.  331 ;  Mustard  v.  Big  Creek  Dev.  Co.,  72  S.  E. 
1021,  69  W.  Va.  713;  Estes  v.  Crosby,  175  N.  W.  933,  Amend,  to 
Mandate  denied,  177  N.  W.  512,  —  Wis.  Sup.  — ;  also  to  sign  his 
principal's  name  to  a  contract  for  the  sale  of  real  estate.  Ratt- 
man  v.  Wasson,  5  Kan.  552;  Pringle  v.  Spalding,  53  Barb.  (N. 
Y.)  17;  Callaghan  v.  Pepper,  2  Ir.  Eq.  (N.  C.)  399;  Coleman  v. 
Garringue,  18  Barb.  (N.  Y.)  60.  In  some  States,  the  agent,  for 
this  purpose,  must  have  written  authority.  Ballon  v.  Bergevindsen, 


6  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

9  N".  D.  285,  83  N".  W.  10 ;  Mainwaring  v.  Crane,  22  Quebec  Sup. 
C.  67;  Lasher  v.  Gardner,  124  III  441,  16  N.  E.  919;  Charles  v. 
Arthur,  84  N".  Y.  S.  284;  Power  v.  Immigration  Land  Co.,  93 
Minn.  247,  101  N.  W.  161.  Contract  of  employment  of  real  estate 
broker  to  sell  lands  of  church,  held  not  within  the  statute  of  frauds. 
Rev.  Code  1919,  sec.  1249;  Stdblein  v.  Gemcinde,  177  N.  W.  810, 
—  S.  D.  Sup.  — . 

Sec.  11.   Employment  of  sub-agents. 

Ordinarily  an  agent  is  without  authority  to  bind  his  principal 
by  the  employment  of  a  broker  to  effect  a  sale.  Bennett  v.  Howes, 
15  Daily  (N.  Y.),  43,  2  N.  Y.  S.  717;  Jenkins  v.  Funk,  33  Fed. 
915;  Graver  v.  House  (Mo.  App.  '09),  120  S.  W.  686;  Sain  v.  St. 
John,  152  S.  W.  284,  105  Ark.  680,  43  L.  R.  A.  (N.  S.)  796; 
Sarensen  v.  Smith,  129  P.  757,  65  Or.  78,  51  L.  R.  A.  (N.  S.)  612, 
Ann.  Cas.  1915,  A.  927;  Judg.  Aff.  on  Rehearing,  131  P.  1022,  65 
Or.  78,  51  L.  R.  A.  (N.  S.)  612;  Ann.  Cas.  1915,  A.  1127;  Ster- 
ritt  v.  Shoemaker,  47  App.  D.  C.  455.  Even  authority  to  take 
any  steps  necessary  to  sell  the  property  is  insufficient  to 
authorize  an  agent  to  employ  a  broker  to  effect  a  sale. 
Carroll  v.  Tucker,  2  Misc.  (N.  Y.),  397,  21  N.  Y.  S.  952; 
however,  a  non-resident  owner  employing  a  non-resident  agent 
to  sell,  impliedly  authorizes  the  latter  to  employ  a  broker  or  sub- 
agent.  Eastland  v.  Maney,  36  Tex.  Civ.  App.  147,  81  S.  W.  574. 
And  whenever  an  agent  given  authority  to  sell  land  exercises  his 
discretion  as  to  the  price,  etc.,  he  may  employ  a  real  estate  broker 
to  find  a  purchaser,  and  a  sale  by  him  will  be  enforced  where  the 
agent  was  required  to  obtain  his  commission  in  addition  to  the 
price  fixed,  although  *Jie  agent  may  have  been  requested  by  his 
principal  not  to  employ  a  sub-agent.  Eenwick  v.  Bancroft,  56 
Iowa,  527,  9  N.  W.  367.  If  an  agent  employs  a  sub-agent  for 
his  principal  and  by  his  authority,  expressed  or  implied,  then 
the  sub-agent  is  the  agent  of  the  principal,  and  is  directly  respon- 
sible to  the  principal  for  his  conduct,  and  if  damage  results  from 
the  conduct  of  such  sub-agent,  the  agent  is  only  responsible  in  case 
he  has  not  exercised  due  care  in  the  selection  of  the  sub-agent.  But 
if  the  agent,  having  undertaken  to  transact  the  business  of  his 
principal,  employs  a  sub-agent,  on  his  own  account,  to  assist  him 
in  what  he  has  undertaken  to  do,  he  does  so  at  his  own  risk  and 


THE  CONTRACT  OF  AGENCY.  7 

there  is  no  privity  between  such  agent  and  the  principal.  The 
sub-agent  is,  therefore,  the  agent  of  the  agent  only  and  is 
responsible  to  him  for  his  conduct,  while  the  agent  is  responsi- 
ble to  the  principal  for  the  manner  in  which  the  business  has 
been  done,  whether  by  himself  or  his  servant  or  his  agent. 
Mechem  on  Agency,  Sec.  197;  Council  v.  U.  8.  Inv.  Co.,  143  P. 
829,  26  Colo.  App.  284. 

Sec.  11  a.    When  not  employed,  sub-agent  not  entitled  to  com- 
pensation. 

Where  a  farm,  placed  in  the  hands  of  agents  for  sale,  was 
sold  by  a  third  person  who  heard  that  it  was  on  the  market  in 
a  casual  conversation  with  one  of  the  partners  of  the  agency, 
he  was  not  such  a  sub-agent  as  will  enable  the  procuring  of  a 
commission  on  the  sale,  where  he  did  not  know  that  his  in- 
formant was  a  partner,  and  who  made  no  express  agreement 
to  become  their  sub-agent.  Kruse  &  Bishop  v.  Hauser,  133  N".  W. 
1067,  153  Iowa,  661. 

Sec.  lib.    Sub-agent,  when  illegally  appointed,  can  not  bind 

principal  to  pay  commission. 

Where  a  sub-agent,  employed  by  real  estate  agent  under  his 
general  authority,  was  directed  by  the  broker  to  continue  his 
efforts,  after  the  option  which  he  had  procured  to  be  taken  was 
cancelled,  the  principal  was  not  liable  for  a  commission  on  a 
sale  by  reason  of  the  sub-agent's  acts  pursuant  to  the  agent's 
directions.  Sorenson  v.  Smith,  129  P.  757,  65  Or.  78,  51  L.  R.  A. 
(K  S.  612,  Ann.  Gas.  1915  A,  1127;  Judg.  aff.  on  real  estate,  131 
P.  1022,  65  Or.  78 ;  McCombs  v.  Moss,  181  S.  W.  907,  121  Ark. 
533 ;  Reasoner  v.  Yates,  134  N.  W.  651,  90  Neb.  757. 

Sec.  12.    Employment  of  brokers,  and  its  limitations. 

A  broker  employed  to  sell  at  a  certain  price  can  not  recover 
commissions  for  selling  at  a  lower  price.  Blackwell  v.  Adams,  28 
Mo.  App.  61 ;  Williams  v.  McOraw,  52  Mich.  480,  18  N.  W.  227. 
A  broker,  in  order  to  be  assured  of  compensation  for  his  services, 
should  have  a  contract  of  employment.  Castner  v.  Richardson, 
18  Colo.  496,  33  P.  163;  Day  v.  Hale,  50  111.  App.  115;  Dyer  v. 
Sutherland,  75  111.  583 ;  Thomas  v.  Merrifield,  1  Kan.  App.  669, 
53  P.  891 ;  Downing  v.  Buck,  135  Mich.  636,  98  N.  W.  388 ;  Crosby 


8  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

v.  St.  Paul  Lake  Ice  Co.  74  Minn.  82,  76  N.  W.  958 ;  Coffin  v. 
Linxweiler,  34  Minn.  320 ;  Whiteley  v.  Terry,  83  N.  Y.  App.  Div. 
197,  82  N.  Y.  S.  89 ;  McVicker  v.  Roche,  74  N.  Y.  App.  Div.  397, 
77  N.  Y.  S.  501 ;  Fowler  v.  Hosher,  53  N.  Y.  App  Div.  327,  65 
N.  Y.  S.  638 ;  Whitchouse  v.  Drisler,  37  N.  Y.  App.  Div.  525,  56 
N.  Y.  S.  95 ;  Von  Hermann  v.  Wagner,  81  Hun,  431,  30  N.  Y.  S. 
991;  Johnson  v.  Whalen,  13  Okla.  320,  74  P.  (503);  Addison 
v.  Wannamaker,  185  Pa.  St.  536,  39  A.  1111;  Copeland  v.  Stone- 
ham  Tannery  Co.  142  Pa.  St.  446,  21  A.  825 ;  Harrison  v.  Long, 
4  Desau  (S.  C.),  110;  Pipkin  v.  Home  (Tex.  Civ.  App.  '02),  68 
S.  W.  1000;Ehrenroth  v.  Putman  (Tex.  Civ.  App.  '00),  55  S.  W. 

190;  O'Connor  v.  Kennedy,  180  111.  App.  277;  Guild  v.  Sampson, 
122  N.  E.  712,  —  Mass.  Sup.  — ;  Browning  v.  Dowell,  218  S.  W. 
45,  —  Tex.  Civ.  App.  — . 

In  case  the  contract  of  employment  fails  to  state  the  terms 
of  sale,  terms  satisfactory  to  the  principal  are  implied.  Fairchild 
v.  Cunningham,  84  Minn.  521,  88  N.  W.  15;  Montgomery  v. 
Knickerbocker,  27  N.  Y.  App.  Div.  117,  50  N.  Y.  S.  128.  The 
contract  of  employment  may  be  drawn  so  as  to  deprive  the  broker 
of  any  right  to  commissions  if  the  transaction  fails  because  of  a 
defect  in  the  principal 's  title  to  the  real  estate.  Louisville  R.  Co. 
v.  Shepard,  126  Ala.  416,  28  S.  202.  If  the  agency  is  limited  to 
the  sale  of  certain  property,  the  broker  must  show  that  the  prop- 
erty sold  was  within  the  limits  of  the  contract.  Maze  v.  Gordon, 
96  Cal.  61,  30  Pac.  962 ;  Park  v.  Tlagle,  124  Iowa  98,  99  N.  W.  185. 

Testimony  of  plaintiff,  in  an  action  to  recover  for  services 
in  purchasing  an  electric  plant,  that  he  went  to  defendant  and 
told  him  that  he  came  pursuant  to  a  telegram  from  a  third  per- 
son; that  he  told  defendant  he  had  obtained  papers  relative  to 
the  plant  and  showed  them  to  him ;  that  defendant  examined  them 
and  expressed  his  satisfaction  with  the  showing,  and  said  he 
wanted  plaintiff  to  represent  him  in  the  matter,  and,  if  the  plant 
was  purchased,  wanted  it  taken  in  plaintiff's  name,  and  that  he 
would  take  care  of  the  plaintiff  in  the  matter,  is  sufficient  to  show 
an  employment  by  defendant,  and  an  agreement  to  pay  the  rea- 
sonable value  of  the  services.  Hart  v.  Maloney,  80  N.  Y.  S.  293, 
80  App.  Div.  265. 

A  company  sought  employment  as  agents  for  a  com- 
mission to  procure  a  purchaser;  it  was  not  recognized  as 


THE   CONTKACT  OF  AGENCY.  9 

such,  and  was  informed  that  a  part  of  the  premises  had 
been  sold,  and  that  an  option  contract  had  been  given  for  the 
balance ;  subsequently  it  wrote  the  owner  that  it  had  a  party  in 
view  whom  it  might  interest  in  the  property,  ' '  provided  we  could 
get  an  option. ' '  The  owner  refused  to  give  the  option,  and  fixed 
the  price  per  acre  and  the  terms,  adding, ' '  If  you  can  do  anything 
for  me  on  these  terms  I  shall  be  glad  to  hear  from  you."  The 
company  wrote,  "Our  people  will  pay  $2,500  net."  The  owner 
agreed  to  sell,  and  the  company,  in  transmitting  the  opinion  of 
its  attorney  on  the  abstract,  referred  to  unpaid  taxes,  the  cost  of 
the  abstract,  and  a  claim  on  account  of  a  deficiency  in  the  acre- 
age, without  any  reference  to  the  commissions.  Held,  That  the 
company  was  not  the  owner's  agent  to  procure  a  purchaser, 
though  it  expected  a  commission  to  which  it  was  not  entitled. 
Steele  v.  Lawyer,  47  Wash.  266,  91  P.  958. 

Defendants  leased  mining  property  to  plaintiff,  with  an  option 
to  purchase  during  the  third  year  of  the  lease  for  $20,000,  and  a 
deed  conveying  the  property  to  the  plaintiff  was  deposited  with 
a  bank,  with  instructions  to  deliver  it  upon  receipt  of  the  sum  of 
$2,500  less  than  that  stated  in  the  option.  Held,  That  there  was 
nothing  in  the  lease  or  instructions  to  show  that  plaintiff  was  an 
agent  to  sell  the  property  on  commission.  Pollard  v.  Sayre, 
(Colo.  Sup.  '08),  98  P.  816.  In  an  action  by  a  real  estate 
broker  to  recover  commissions  for  procuring  a  purchaser  for 
defendant's  property,  a  letter  from  the  broker  stating  that  if 
the  owner  of  the  land  makes  an  exchange,  the  broker  expects  him 
to  pay  a  commission,  and  asking  him  if  he  would  do  so,  and  the 
answer  from  the  owner  that  in  case  of  a  sale  he  would  be  willing 
to  pay  a  commission,  was  sufficient  to  show  an  implied  promise  on 
the  part  of  the  owner  to  pay  what  plaintiff's  services  were  rea- 
sonably worth  on  a  subsequent  exchange  brought  about  by  the 
services  of  the  plaintiff.  Anndbil  v.  Traverse  Land  Co.  (Minn. 
Sup.  '09),  121  N.  W.  233. 

Employment  to  ' '  get  an  offer ' '  for  land  is  one  to  make  a  sale 
or  exchange  in  a  reasonable  time,  and  not  merely  to  procure  a 
single  offer.  Curran  v.  Hublard,  114  P.  81,  14  Cal.  App.  733, 
re.  den.  114  P.  83,  14  Cal.  App.  733.  Where  a  real  estate  broker 
wrote  to  a  landowner  that  an  out-of-town  customer  wanted  to 
buy  a  large  tract  of  land,  and  he  wished  to  know  if  the  owner's 
land  was  for  sale,  and  if  so,  at  what  price,  the  owner's  reply 


10  AMERICAN   LAW   EEAL   ESTATE   AGENCY. 

fixing  a  price,  and  describing  his  land  in  accordance  with  the 
request,  will  not  create  a  contract  entitling  the  broker  to  a 
commission  for  procuring  a  purchaser.  Bond  v.  Humbird,  80  A. 
943,  118  Md.  650.  Broker  employed  to  purchase,  held,  not  en- 
titled to  a  commission  until  he  secures  a  vendor  able  to  convey 
free  from  incumbrances.  Bronk  v.  Conn.  Trust  &  Safe  Deposit 
Co.,  93  A.  128,  89  Conn.  134.  The  rights  of  an  agent,  or  his  as- 
signee, to  compensation  are  fixed  when  a  sale  has  been  made, 
and  the  payment  of  the  compensation  cannot  be  postponed  by 
any  agreement  between  the  principals  and  a  third  person  to 
which  the  agent  is  not  a  party.  F.  Haag  &  Bro.  v.  Reichert,  134 
S.  W.  191,  142  Ky.  298.  Where  realty  brokers  replied  to  a  re- 
sponse to  their  ad,  stating  that  the  owner  of  the  places  they 
advertised  could  not  consider  the  property  of  the  person  who 
answered,  and  then  made  a  counter  offer,  no  contract  of  em- 
ployment of  the  brokers  by  the  party  resulted.  Lueddemann  v. 
Rudolf,  154  P.  116,  re.  den.  155  P.  172,  —  Or.  Sup.  — .  A  con- 
tract which  makes  one  the  agent  of  an  owner  of  land  for  the 
sale  thereof  is  simply  a  listing  contract,  revocable  at  any  time 
by  the  owner.  Fields  &  Combs  v.  Vizard  Inv.  Co.,  182  S.  W.  934, 
168  Ky.  744.  That  defendant,  while  acting  as  agent  for  B, 
one  of  the  parties  to  an  exchange  of  realty,  promised  plaintiff, 
the  other  party,  that  he  would  get  the  price  he  could  from  B, 
did  not  constitute  defendant  plaintiff's  agent.  Carothers  v.  Caine, 
175  P.  478,  —  Cal.  App.  — .  Where  the  owner  of  timber-lands 
agreed  that  plaintiff  might  sell  them  within  a  certain  time  and 
on  certain  terms,  the  owner  reserving  the  right  to  approve  or 
reject  any  parties  or  any  proposition,  made  commission  to  be 
paid  in  case  of  sale  to  a  purchaser  induced  by  the  broker ;  such 
agreement  gave  no  exclusive  right  to  the  broker  to  sell  and 
thereby  earn  a  commission,  but  merely  constituted  a  listing  of 
the  property  for  sale.  Saunders  v.  Hackley  &  Hume  Co.,  208  S. 
W.  67  ,  —  Mo.  App.  — .  A  contract  by  defendant  to  pay  plaintiff 
a  fixed  commission  on  a  sale  of  land  at  a  fixed  price,  with  a 
sufficient  cash  payment  to  "secure  him  on  the  sale", 
the  balance  at  5%  for  "five  years  and  maybe  longer", 
was  a  valid  brokerage  contract.  Edmundson  v.  Plienix, 
178  N.  W.  893,  —  Minn.  — .  A  broker's  letter,  dated  January 
29,  1919,  stating  his  understanding  that  the  first  mortgage  on 


THE  CONTEACT  OF  AGENCY.  11 

defendant's  farm  ran  to  March  1,  1921,  and  inquiring  whether 
he  would  carry  a  second  mortgage  till  then,  and  that  he  had 
a  party  inquiring  about  it  who  had  only  $8,000,  and  defendant 's 
reply  seven  days  later  offering  to  sell,  if  buyer  assumed  first 
mortgage  of  $8,000  and  paid  $12,000  in  cash,  and  the  balance 
in  a  few  months,  or  all  the  price  in  cash,  did  not  create  an 
agency  for  an  indefinite  term  or  authorize  the  broker  to  sell  at 
the  same  price  on  the  last  day  of  May,  1919.  Moore  v.  Bentson, 
179  N.  W.  560,  —  Minn.  Sup.  — . 


CHAPTER  II. 

SECTION.  SECTION. 

13.  Exclusive  employment  as  bro-       17.    Special    contracts    for    sale   of 

ker  or  agent.  real  estate. 

14.  Duration  of  the  agency.  18.     Authority  conferred  on  brokers 

15.  Termination  of  the  agency.  and  agents. 

16.  A  contract  coupled  with  an  in- 

terest. 

Sec.  13.    Exclusive  employment  as  broker  or  agent. 

An  exclusive  agency,  supported  by  a  sufficient  consideration, 
entitles  a  broker  to  commissions  on  a  sale  made  by  the  principal 
(if  excluded)  or  through  the  efforts  of  another  broker  during  the 
time  specified.  Gregory  v.  Bonney,  135  Cal.  589,  67  P.  1038; 
Crane  v.  McCormick,  92  Cal.  176,  28  P.  222;  Long  v.  Herr,  10 
Colo.  380,  15  P.  802 ;  Metcalf  v.  Kent,  104  Iowa,  487,  73  N.  W. 
1037 ;  Lipscomb  v.  Cole,  81  Mo.  App.  53 ;  Levy  v.  Rothe,  17  Misc. 
402,  39  N.  Y.  S.  1057 ;  Schultz  v.  Griffin,  5  Misc.  499,  26  N.  Y.  S. 
713;  Emberson  v.  Dean,  46  How.  Pr.  (N.  Y.)  236;  Powell  v. 
Anderson,  15  Daly,  219,  4  N.  Y.  S.  706;  Owens  v.  Wekrle,  14 
Pa.  Super.  Ct.  536;  Sylvester  v.  Johnson,  110  Tenn.  392,  75 
S.  W.  923;  String  fellow  v.  Powers,  4  Tex.  Civ.  App.  199,  23 
S.  W.  313;  Carle  v.  Parent  (Montreal  L.  R.),  5  Q.  B.  451;  Moses 
v.  Bierland,  31  N.  Y.  462 ;  James  H.  Button  Co.  v.  Hammon,  170 
S.  W.  1186,  161  Ky.  498;  Murphy  v.  Sawyer  &  Wurford,  153 
S.  W.  991,  152  Ky.  645;  Oeo.  J.  Wanstrath  R.  E.  Co.  v.  Wenz, 
170  S.  W.  345,  185  Mo.  App.  162;  Dresser  v.  Gilbert,  79  A.  1043, 
81  N".  J.  Law,  358;  Mercantile  Trust  Co.  v.  Johnson,  160  S.  W. 
535,  177  Mo.  App.  503 ;  Kruse  v.  Ferber,  103  A.  409,  -  -  N.  J. 
Sup.  — ;  Howard  &  Brown  Realty  Co.  v.  Barnett,  206  S.  W.  417, 

—  Mo.  App.  — ;  Stevenson  Co.  v.  Oppenheimer,  101  A.  88,  —  N. 
J.  Sup.  — ;  Popplewell  v.  Buchanan,  204  S.  W.  874,  —  Tex. 
Civ.  App.  — ;  Ail.  Coast  Realty  Co.  v.  Townsend,  98  S.  E.  684, 

—  Va.  Sup.  — . 

12 


THE  CONTRACT  OF  AGENCY.  13 

Where  a  broker  was  given  exclusive  authority  to  sell  property 
until  a  certain  date,  and  during  such  time  tried  to  make  a  sale 
with  a  certain  buyer,  but  failed  and  abandoned  his  efforts,  the 
owner  was  not  liable  for  commission  upon  sale  to  such  buyer  ef- 
fected after  the  broker's  exclusive  contract  had  expired,  the 
broker  not  having  been  the  procuring  cause  of  the  sale.  Rosenfield 
v.  Wall,  109  A.  409,  —  Conn.  Sup.  — . 

Where  a  broker  is  given  the  exclusive  agency,  but  not  inhibit- 
ing the  principal  from  selling,  the  contract  is  not  violated  by  a 
sale  by  the  principal  to  one  not  a  customer  of  the  broker.  Eng- 
lish v.  Wm.  George  Butt.  Co.  (Tex.  Civ.  App.  '08),  117  S.  W. 
996;  Waterman  v.  Boltinghouse,  82  Cal.  659,  23  P.  195;  Ingold 
v.  Symonds,  125  Iowa,  82,  99  N".  W.  713;  Johnson  v.  Buchanan 
(Tex.  Civ.  App.  '09),  116  S.  W.  875;  Dole  v.  Sherwood,  41  Minn. 
535,  43  N.  W.  569;  Wylie  v.  Marine  Nat.  BTc.,  61  N.  Y.  415; 
Golden  Gate  Packing  Co.  v.  Mine,  55  Cal.  606;  Wright  v.  Waite, 
148  N.  W.  50,  126  Minn.  115;  Massey  v.  Southern  Land  Co.,  174 
S.  W.  531,  117  Ark.  655;  McCombs  v.  Moss,  181  S.  W.  907,  121 
Ark.  503;  Cisel  Talbott  &  Co.  v.  Hay  den,  41  App.  D.  C.  477; 
Bryant  v.  Palmer,  171  111.  App.  213 ;  Smith  v.  Preiss,  136  N.  W. 
7,  117  Minn.  392;  Ann.  Gas.  1913  D,  820;  Greene  v.  Am.  Malt- 
ing Co.,  140  N.  W.  1130,  153  Wis.  216;  Snook  v.  Page,  155  P. 
107,  29  Cal.  App.  246 ;  Morris  v.  Clark,  80  S.  406,  —  Ala.  Sup. 
— ;  Harris  &  White  v.  Stone,  207  S.  W.  443,  —  Ark.  Sup.  — ; 
Armstrong  v.  Lounsberry,  Simmons  &  Co.,  173  N".  W.  890,  — 
Iowa  Sup.  — ;  Alley  v.  Griff  en,  215  S.  W.  479,  —  Tex.  Civ.  App. 
— ;  Gammell  v.  Cox,  219  S.  W.  745,  —  Ark.  Sup.  — ;  Chas.  E. 
Walters  Co.  v.  Hahn,  178  N\  W.  448,  -  -  S.  Dak.  Sup.  — ; 
Stoats  v.  Mengelsen,  180  N".  W.  78,  -  -  Neb.  Sup.  — .  A  con- 
tract of  agency  will  not  be  construed  to  be  exclusive,  unless 
established  expressly  or  by  clear  implication.  Crook  v.  Forst,  116 
Ala.  395,  22  S.  540;  White  v.  Benton,  121  Iowa,  354,  96  K  W. 
876;  Kidman  v.  Howard,  18  S.  Dak.  161,  99  K  W.  1104; 
Talbot  v.  Mattox,  Dawson  &  Posey  Realty  Co.,  109  P.  128,  26 
Okl.  298;  Ritch  v.  Robertson,  106  A.  509,  —  Conn.  Sup.  — ;  Mc- 
Fadden  v.  Crisler,  213  S.  W.  912,  --  Tenn.  Sup.  — ;  Faith  v. 
Meisetschlager,  187  P.  61,  —  Cal.  App.  — . 

It  was  agreed  between  the  owner  of  land  and  a  broker,  that 
the  broker  should  have  the  ' '  exclusive  agency ' '  for  the  sale  of 


14  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

the  land  for  a  fixed  period  at  a  fixed  price,  and  that  the  broker 
should  give  attention  to  the  sale  of  the  land,  have  the  same 
examined  and  advertised,  and  should  report  promptly  all  sales, 
etc.  The  land  aggregated  over  51,000  acres,  and  the  timber 
thereon  was  the  most  valuable  part.  Held,  That  the  words  ' '  ex- 
clusive agency"  deprived  the  owner  of  the  right  to  sell  the 
premises,  and  a  sale  by  him  of  the  timber  before  the  expiration 
of  the  fixed  period  was  a  breach  of  the  contract.  Hunter  v. 
Wenatchee  Land  Co.  97  P.  494,  50  Wash.  438.  (This  is  contrary 
to  the  general  doctrine  which  requires  the  exclusive  right  to 
the  agent  to  deprive  the  owner  of  the  right  to  sell.) 

A  company  was  employed  to  sell  defendant's  property  under  a 
contract  giving  it  the  sole  agency  for  the  sale  of  the  property  for 
three  months  from  the  date  of  the  contract,  and  thereafter  until 
notified  by  defendant  in  writing  of  the  withdrawal  of  the  prop- 
erty from  sale,  and  defendant  further  agreed  to  pay  the  company 
the  agreed  commission  if  the  property  was  sold  during  the  term 
of  the  contract,  whether  sold  by  the  company  or  by  some  one 
else.  Held,  That  the  company  would  be  entitled  to  the  specified 
commission  on  the  sale  taking  place  within  three  months,  regard- 
less of  any  attempted  revocation  by  the  principal.  Novakovich 
v.  Union  Trust  Co.  (89  Ark.  412),  117  S.  W.  246. 

A  broker  is  not  entitled  to  commission  on  a  sale  by  a  principal, 
notwithstanding  he  is  given  the  exclusive  right  to  sell,  unless  it 
is  also  agreed  that  he  shall  receive  a  commission  whether  the  sale 
be  effected  by  him,  by  the  principal,  or  some  third  person.  Tur- 
ner v.  Baker,  225  Pa.  359,  74  A.  172.  (Unless  the  principal 
agrees  to  pay  commissions  in  case  of  sale  by  him  or  another  broker, 
the  broker  prejudiced  has  a  right  of  action  for  breach  of  the 
contract.)  An  owner  of  property  contracted  with  a  broker 
to  make  a  sale  of  property,  and  that  in  case  of  a  sale  thereof,  with- 
in one  year,  he  would  pay  a  commission.  Held,  That  the  sale  re- 
ferred to  was  one  consummated  by  the  broker  or  brought  about 
by  him,  he  having  found  a  purchaser  and  brought  the  owner  and 
purchaser  together,  and  did  not  give  the  broker  the  exclusive 
right  of  sale  to  the  exclusion  of  the  owner  himself,  and  he  was 
not  entitled  to  a  commission  upon  a  sale  made  by  the  owner. 
Parkhurst  v.  Tyron,  119  N.  Y.  S.  184. 

A  broker's  acceptance  of  owner's  agreement  that  broker  shall 


THE  CONTEACT  OF  AGENCY.  15 

have  exclusive  agency  for  sale  of  land,  and  Ms  services  thereunder 
supplies  the  element  of  mutuality,  and  makes  it  a  binding  obli- 
gation on  both.  Braniff  v.  Baier,  165  P.  816,  101  Kan.  117. 

Where  a  real  estate  owner  signed  an  agreement  giving  an  ex- 
clusive agency  to  sell,  and  the  broker,  though  not  signing  it, 
acted  thereon,  it  became  binding.  Howard  &  Brown  Realty  Co. 
v.  Barnett,  206  S.  W.  417,  —  Mo.  App.  — . 

Under  a  contract  allowing  a  broker  a  fixed  commission  on  all 
sales  of  land  within  five  years,  whether  made  by  him  or  not,  or 
breach  of  the  other,  he  was  properly  allowed  commission  on  all 
sales  made  within  that  period,  though  they  were  procured  by  the 
combined  efforts  of  nearly  all  the  real  estate  brokers  in  the  city. 
Hagan  v.  Nashville  Trust  Co.,  136  S.  W.  993,  124  Tenn.  93. 

A  broker  is  not  entitled  to  a  commission  on  a  sale  by  his  prin- 
cipal, notwithstanding  he  is  given  the  exclusive  right  to  sell,  un- 
less it  is  also  agreed  that  he  shall  receive  commission  whether 
the  sale  be  effected  by  him,  by  the  principal,  or  some  third  per- 
son. Bomar  v.  Munn,  158  S.  W.  1186,  —  Tex.  Civ.  App.  — . 

Sec.  14.    Duration  of  the  agency. 

An  agency  to  sell  real  estate  is  presumed  to  continue  until  a 
sale  is  effected,  and  the  burden  is  on  the  principal  to  rebut  such 
presumption.  Hartford  v.  McGillicuddy,  103  Me.  224,  68  A 
860.  A  contract  of  agency  ordinarily  ceases  on  the  delivery  of 
the  title  papers  and  the  payment  for  the  property.  Walker  v. 
Derby,  5  Biss.  (U.  S.)  134;  Campbell  v.  Chase  (Kan.  Sup.  '08), 
96  P.  949;  Bd  Trus.  Oberlin  Coll.  v.  Blair,  45  W.  Va.  812,  32 
S.  E.  203.  Wallace  v.  McKenna,  173  P.  749,  —  Idaho  Sup.  — . 
The  vendor  sometimes  limits  the  time  within  which  to  sell  to  30 
or  60  days.  Beadle  v.  Sage  Ld.  &  Imp.  Co.,  140  Mich.  199,  103 
K  W.  554;  Satterthwaiie  v.  Goodyear,  137  K  C.  302,  49  S.  E. 
205.  A  principal  is  not  liable  for  commissions  if  the  sale  is  not 
made  until  after  the  time  fixed  has  expired.  Hurst  v.  Williams, 
31  Ky.  Law  Rep.  658,  102  S.  W.  1176 ;  Dekker  v.  Klingman,  149 
Mich.  96,  112  N.  W.  727,  14  D.  L.  K  341;  Horton  v.  Inman, 
145  Mich.  438;  108  N.  W.  746;  Loxley  v.  Studebacker,  68  A. 
98,  75  N.  J.  L.  599;  Ewing  v.  Lunn  (S.  Dak.  Sup.  '08),  115 
N.  W.  527;  Slotboom  v.  Simpson  Lumber  Co.,  136  P.  641,  67 


16  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Or.  516,  Ann.  Cas.  1915,  C.  339,  den.  re.  135  P.  889,  67  Or.  516, 
Ann.  Cas.  1915,  C.  339;  Wallace  v.  McKenna,  173  P.  749,  — 
Idaho  Sup.  — .  However,  where  the  owner  waives  performance 
within  the  time  and  accepts  a  purchaser  furnished  after,  he  will 
be  liable  to  the  broker  for  commissions.  Ice  v.  Maxwell,  55  S.  E. 
899,  61  W.  Va.  9.  A  broker  was  held  entitled  to  compensation, 
who  found  a  purchaser  near  the  end  of  the  contract  who  desired 
time  to  examine  the  title.  Watson  v.  Brooks,  13  Fed.  540,  8  Saw- 
yer Cir.  Ct.  316.  See  Sec.  175. 

That  the  broker  had  not  a  continuing  agency  from  Y.  for 
the  sale  of  the  property  until  the  time  of  its  sale  to  A.,  is  shown 
by  the  fact  that  when  A.  asked  him  if  he  still  had  the  property 
for  sale,  he  did  not  assert  a  continuing  agency,  but  said  that  he 
would  see,  and  then  went  to  Y.  to  see  if  he  could  still  be  allowed 
to  make  the  sale,  and  was  informed  by  Y.  that  he  could  not  do  so, 
as  another  had  taken  up  the  matter.  Kiefer  v.  Yoder,  198  Pa. 
St.  308,  47  A.  974. 

A  contract  whereby  real  estate  brokers  were  authorized  to  sell 
land,  with  a  provision  that,  should  the  property  be  withdrawn  be- 
fore 1905,  the  brokers  would  receive  compensation,  does  not,  by 
its  terms,  expire  in  1905.  Berberet  v.  Myers,  144  S.  W.  824,  240 
Mo.  58.  Contract  of  defendant  owner  to  pay  plaintiff  brokers 
commission,  giving  brokers  exclusive  right  to  sell,  with  reserva-' 
tion  by  the  owner  of  right  to  revoke  the  agreement  on  three 
months'  notice  in  writing,  held,  sufficiently  definite  in  fixing 
time  of  duration  of  the  agency,  in  compliance  with  Stat.  1919, 
sec.  2305m.  Brown  v.  Marty,  179  K  W.  602,  --  Wis.  Sup.  — . 

Where  no  consideration  was  paid  by  the  real  estate  broker  for 
a  contract  giving  him  for  a  certain  time  the  "exclusive  sale"  of 
a  farm,  and  he  incurred  no  obligation  to  do  anything,  such  con- 
tract, while  it  precluded  the  owner  from  giving  any  one  else  the 
power  to  sell,  did  not  preclude  a  sale  by  the  owner  himself  dur- 
ing the  period  named,  in  the  absence  of  clear  and  unequivocal 
language  negativing  such  right  on  his  part.  Roberts  v.  Harring- 
ton, 169  N.  W.  603,  168  Wis.  217;  Kurwin  &  Eichweiler,  JJ., 
dissenting,  10  A.  L.  E.  810. 


THE  CONTRACT  OF  AGENCY.  17 

Sec.  15.    Termination  of  the  agency. 

Ordinarily,  unless  a  contract  of  employment  is  coupled  with  an 
interest  or  is  given  for  a  valuable  consideration,  the  authoritj'  of 
the  agent  may  be  terminated  at  will  by  giving  notice,  subject 
only  to  the  requirement  that  it  be  given  in  good  faith,  and  before 
the  broker  finds  a  purchaser.  Branch  v.  Moore,  84  Ark.  462,  105 
S.  W.  1178 ;  Blumenthal  v.  Goodale,  89  Cal.  251,  26  P.  906 ;  Brown 
v.  Pfau,  38  Cal.  550;  Freeland  v.  Hughes,  109  111.  App.  73; 
Young  v.  Trainor,  158  111.  428,  42  N.  E.  139;  Schuster  v.  Martin, 
45  111.  App.  481;  Gleason  v.  McKay,  37  111.  App.  464;  Bush 
v.  Hill,  62  111.  216 ;  Wilson  v.  Dyer,  12  Ind.  App.  320,  39  N.  E. 
163 ;  Kavanaugh  v.  Bollard,  21  Ky.  L.  R,  1683,  56  S.  W.  159 ; 
Taylor  v.  Martin,  109  La.  137,  33  S.  112 ;  Cadigan  v.  Crabtree, 
186  Mass.  7,  70  N.  E.  1033,  66  L.  R.  A.  982,  179  Mass.  474,  61 
N.  E.  37,  55  N.  E.  77 ;  West  v.  Demme,  128  Mich.  11,  88  N.  W. 
95;  Heaton  v.  Edwards,  90  Mich.  500,  51  N.  W.  544;  Reishus- 
Remer  Ld.  Co.  v.  Benner,  91  Minn.  401,  98  N.  W.  186 ;  Jayne 
v.  Drake  (Miss.  Sup.  '06),  41  S.  372;  Kolb  v.  Bennett  Land  Co. 
74  Miss.  567;  Jones  v.  Berry,  37  Mo.  App.  125;  Kesterson  v. 
Chauvrant  (Mo.  App.  '02),  70  S.  W.  1091;  Green  v.  Wright,  36 
Mo.  App.  298 ;  Huffner  v.  Ellis,  64  Neb.  623,  90  N.  W.  552 ;  Slater 
v.  Holt,  10  N.  Y.  State,  257 ;  Cardy  v.  Ruth,  100  N.  Y.  S.  1043, 
115  App.  Div.  568,  103  N.  Y.  S.  1121;  Abbott  v.  Hunt,  129  N.  C. 
403,  40  S.  E.  119 ;  Raleigh  R.  E.  &  T.  Co.  v.  Adams,  58  S.  E. 
1008,  145  N.  C.  161 ;  Vincent  v.  Woodland  Oil  Co.  165  Pa.  St. 
402,  30  A.  991 ;  Evans  v.  Gay,  38  Tex.  Civ.  App.  442,  74  S.  W. 
575;  Newton  v.  Conness  (Tex.  Civ.  App.  '08),  106  S.  "W.  892; 
Knox  v.  Parker,  2  Wash.  34,  25  P.  909;  Ernst  v.  Ganahl,  137 
P.  256,  166  Cal.  493;  Fields  &  Comb  v.  Vizard  Inv.  Co.,  182  S. 
W.  934,  168  Ky.  744;  Wright  v.  Waite,  148  K  W.  50,  126  Minn. 
115;  Howard  v.  Street,  93  A.  923,  125  Md.  289;  Wiesells-Ger- 
hart  Real  Estate  Co.  v.  Wainwright,  105  S.  W.  1096,  127  Mo. 
App.  514;  Saunders  v.  Hackley  &  Hume  Co.,  208  S.  W.  67,  — 
Mo.  Sup.  — ;  U.  S.  Farm  Loan  Co.  v.  Darter,  183  P.  696.  — 
Cal.  App.  — ;  Emerson  v.  Ackerm,an,  124  N.  E.  17,  —  Mass. 
Sup.  — ;  Jenkins  v.  Kay,  224  S.  W.  1028,  —  Mo.  App.  — .  A 
power  confided  to  two  or  more  special  agents  terminates  on  the 
death  of  one.  Mechem  on  Ag.  Sec.  250;  hut  the  authority  is  not 
revoked  by  a  letter  which  was  not  received  by  the  broker.  Sayre 


18  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Y.  Wilson,  86  Ala.  151,  5  S.  157.  A  contract  of  agency  may  be 
terminated  by  the  death  of  the  principal.  Crowe  v.  Trickey,  204 
U.  S.  228,  affirming  71  P.  (Ariz.)  965;  Crowe  v.  Harmon,  204 
TJ.  S.  241,  affirming  71  P.  (Ariz)  1125;  Kyle  v.  Gaff,  105  Mo. 
App.  672,  78  S.  W.  1047 ;  Shistler's  Est.  2  Pa.  Dist.  588 ;  Mechem 
on  Ag.  Sec.  240;  or  by  the  partial  destruction  of  the  subject- 
matter,  e.  g.  the  dwelling;  Cox  v.  Bowling,  54  Mo.  App.  289. 
Where  a  time  limit  has  been  given,  the  principal  can  not  but  in 
good  faith  revoke  before  it  expires.  Blumenthal  v.  Goodall,  89 
Cal.  251,  26  P.  906;  Glover  v.  Henderson,  170  Mo.  367,  25  S.  W. 
175 ;  Stamets  v.  Dennison,  193  Pa.  St.  548,  44  A.  575 ;  Norton  v. 
Sjolseth,  43  Wash.  327,  86  P.  573.  Where  the  contract  is  limited 
to  a  definite  period,  it  ends  at  that  time.  Zeimer  v.  Antisell,  75 
Cal.  509,  17  P.  642;  La  Force  v.  Washington  Uni.,  106  Mo.  App. 
517,  81  S.  W.  209;  Sorenson  v.  Smith,  129  P.  757,  65  Or.  78, 
51  L.  E.  A.  (K  S.)  612,  Ann.  Gas.  1915  A,  1127;  jud.  aff'd  on 
re.  131  P.  1022,  65  Or.  78,  51  L.  R.  A.  (N.  S.)  612,  Ann.  Cas. 
1945  A,  1127;  Naylor  v.  Ashton,  130  P.  181,  20  Cal.  App.  544; 
Edwards  v.  Laird,  134  P.  365,  22  Cal.  App.  398;  Slotboom  v. 
Simpson  Lumber  Co.,  136  P.  641,  67  Or.  516,  Ann.  Cas.  1915  C, 
337,  den.  re.  135  P.  889,  67  Or.  516,  Ann.  Cas.  1915,  339.  The 
owner  is  under  no  obligation  to  extend  the  time  in  favor  of  a 
prospective  purchaser  found  by  the  broker;  time  is.  of  the  essence 
of  such  a  contract.  Castner  v.  Richardson,  18  Colo.  496,  33  P. 
163;  Watson  v.  Brook,  11  Oregon,  271,  3  Pac.  679;  Naylor  v. 
Ashton,  130  P.  181,  20  Cal.  App.  544;  Edwards  v.  Laird,  134  P. 
365,  22  Cal.  App.  398;  Slotboom  v.  Simpson  Lumber  Co.,  135 
P.  889,  67  Or.  516,  Ann.  Cas.  1915  C,  339. 

An  agency  may  be  revoked  by  a  sale  by  the  owner  without  no- 
tice to  the  agent;  after  the  sale  there  is  nothing  to  support  the 
agency,  and  revocation  will  be  presumed.  Mechem  on  Ag.  220; 
White  v.  Hoskins,  121  Iowa,  354,  96  N.  W.  876;  Helling  v. 
Darby,  71  Kan.  107,  79  P.  1073;  Boars  v.  Hyland,  65  Minn.  150, 
67  N.  W.  1148;  Hodge  v.  Appelles,  107  N.  Y.  S.  170,  122  App. 
Div.  437;  Ettinghoff  v.  Harwitz,  100  N.  Y.  S.  1002,  115  App. 
Div.  571 ;  McDonald  v.  Cabiness,  100  Tex.  615,  102  S.  W.  721 ; 
Hatch  v.  Coddington,  95  U.  S.  48,  56.  See  also  Sec.  643.  Stone 
v.  Howell,  150  N.  W.  15,  168  Iowa,  282;  Hallstead  v.  Perrings, 
120  N.  W.  1078,  87  Neb.  128;  Johnston-Reynolds  Land  Co.  v. 


THE  CONTRACT  OF  AGENCY.  19 

Ferqua,  151  S.  W.  693,  105  Ark.  358;  Myers  v.  Batcheller,  163 
N.  Y.  Supp.  688,  177  App.  Div.  47;  McFadden  v.  Crisler,  213 
S.  W.  912,  —  Tenn.  Sup.  — ;  Cal  Land  Sec.  Co.  v.  Ritchie,  180 
p.  625,  —  Cal.  App.  — ;  Roth  v.  Thompson,  180  P.  656,  —  Cal. 
App.  — ;  Wing  v.  Davis,  215  S.  W.  636,  —  Ark.  Sup.  — ;  Stoats 
v.  Mengelsen,  180  N.  W.  78,  —  Neb.  Sup.  — .  Contra,  Reams  v. 
Wilson,  147  N.  C.  304,  60  S.  E.  1124;  also,  Sec.  587.  The 
agency  may  be  revoked  by  the  exercise  of  an  option  to  purchase. 
Faraday  Coal  &  Coke  Co.  v.  Owens,  26  Ky.  L.  E.  E.  243,  80 
S.  W.  1171.  Notice  to  the  agent  terminating  the  agency  takes 
effect  from  the  date  of  the  delivery  or  receipt  thereof  by  the 
agent.  Rees  v.  Fellow,  97  Fed.  167,  38  C.  C.  A.  94;  Robertson 
v.  Cloud,  47  Miss.  208.  "Violation  of  instructions  warranted  a 
principal  in  terminating  the  agency.  Macferran  v.  Gallinger,  210 
Pa.  St.  74,  59  A.  435.  Where  a  principal  wrote  his  agent  not 
to  sell  property  but  his  residence,  authority  to  sell  the  former 
was  revoked.  Abbott  v.  Hunt,  129  N.  C.  403,  40  S.  E.  119.  The 
fraud  of  a  broker  in  making  misrepresentations  in  negotiating 
an  exchange  of  lands  warranted  his  discharge.  Featherstone  v. 
Trone,  82  Ark.  381,  102  S.  W.  196.  A  contract  of  agency  deter- 
mines on  the  fraud  of  the  agent.  Patton  v.  Cook,  48  N.  W.  994, 
83  Iowa,  71.  An  agency  for  ten  days  or  until  withdrawn  in  writ- 
ing, is  not  terminated  at  the  end  of  an  extension  granted.  Clark 
v.  Dahiel,  3  Cal.  App.  121,  84  P.  429.  Where  several  brokers 
have  the  same  property  for  sale,  a  sale  by  one,  to  the  knowledge 
of  the  others,  puts  an  end  to  the  contract  with  the  others.  Cash- 
man  v.  Glover,  11  111.  600.  Or  without  notice,  infra.  There  are 
authorities  holding  that  where  the  broker  has  incurred  expenses, 
and  has  expended  time  and  money  in  endeavoring  to  sell,  the 
principal  will  not  be  allowed  to  terminate  the  agency.  McCray 
&  Son  v.  Pfost,  118  Mo.  App.  672,  94  S.  W.  998;  and  on  doing 
so  the  agent  may  recover  damages.  Green  v.  Cole,  103  Mo.  70, 
15  S.  W.  317 ;  Durkee  v.  Gunn,  41  Kan.  496,  21  Pac.  637 ;  Bath- 
rik  v.  Coffin,  13  N.  Y.  App.  Div.  101,  43  N.  Y.  S.  313;  Rowan  v. 
Hull,  55  W.  Va.  335,  47  S.  E.  92;  Tappin  v.  Henley,  11  Weekly 
Eep.  (Eng.)  466;  McMillan  v.  Quincey,  72  S.  E.  506,  137  Ga. 
63.  A  contract  terminated  by  a  sale  by  the  owner  to  one  with 
whom  the  agent  had  begun  negotiations  does  not  defeat  the 
broker's  right  to  commissions.  Sylvester  v.  Johnson,  110  Tenn. 


20  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

392,  75  S.  W.  923 ;  U.  8.  Farm  Land  Co.  v.  Darter,  183  P.  696, 
—  Cal.  App.  — ;  Ritch  v.  Robertson,  106  A.  509,  —  Conn.  Sup. 
— ;  Brown  &  Peeples  v.  Stokes,  103  S.  E.  423,  —  Ga.  App.  — . 
Contra,  Quist  v.  Goodfellow,  99  Minn.  509,  110  1ST.  W.  65.  Under 
a  contract  to  continue  until  withdrawn  in  writing,  a  deed  by  the 
owner  to  a  purchaser  was  held  not  equivalent  to  a  withdrawal. 
Kimmel  v.  Shelly,  130  Cal.  555,  62  Pac.  1067.  This  conflicts 
with  the  well  established  rule  that  a  sale  of  the  subject-matter 
of  the  agency  puts  an  end  to  the  agent's  employment. 

Where  a  purchaser  failed  to  make  payment,  and  the  owner 
declared  the  contract  at  an  end,  he  was  held  liable  to  the 
broker  for  his  commission.  Ward  v.  Cobb,  148  Mass.  518, 
20  N.  E.  174.  An  agency  once  terminated  is  not  revived  by 
subsequent  acts.  Moore  v.  Stone,  40  Iowa,  259.  A  revocation 
may  be  effected  by  notification  to  the  agent  in  writing  or  by 
parol,  even  where  power  was  given  by  deed,  or  be  implied  from 
circumstances.  Brookshire  v.  Brookshire,  8  Ired.  (N.  C.)  74. 
Where  an  agent  has  special  authority  to  do  only  a  particular 
act  no  notice  of  revocation  to  third  parties  is  necessary.  1  Par- 
sons on  Con.  71.  The  revocation  of  a  contract  with  a  broker,  after 
he  procures  a  purchaser,  does  not  operate  to  deprive  the  broker 
of  commissions.  Branch  v.  Moore,  84  Ark.  462,  105  S.  W.  1178 ; 
Bush  v.  Hill,  62  111.  216 ;  Provident  T.  Co.  v.  Darraugh,  168  Ind. 
29,  78  N.  E.  1030;  Gillett  v.  Corum,  7  Kan.  156;  Shepard  v. 
Hedden,  29  N.  J.  L.  334;  Reams  v.  Wilson,  147  N.  C.  304,  60 
S.  E.  1124.  The  revocation  of  a  contract  to  sell  follows  a  sale  by 
the  owner  and  no  notice  to  the  agent  is  necessary.  Wallace  v. 
Figone,  107  Mo.  App.  362,  81  S.  W.  492.  Compare,  Reams  v. 
Wilson,  147  N.  C.  304,  60  S.  E.  1124.  Where  a  broker  has  a 
certain  time  within  which  to  effect  a  sale,  the  principal  can  not 
defeat  his  right  to  compensation  by  revoking  the  agency  before 
the  expiration  of  the  time  specified.  Harrison  v.  Angerson,  115 
111.  App.  226;  Stamets  v.  Dennison,  193  Pa.  St.  548,  44  A.  575. 
Compare  Sec.  22;  Sill  v.  Ceschi,  140  P.  940,  167  Cal.  698;  C  aid- 
well  v.  Tannehill,  81  S.  E.  6,  117  Va.  11 ;  Smith  v.  Plant,  103  N". 
E.  58,  216  Mass.  91 ;  Dodge  v.  Guilders,  151  S.  W.  749,  107  Mo. 
App.  448;  Reams  v.  Wilson,  60  S.  E.  1124,  147  N.  C.  304;  J.  L. 
Case  Threshing  Mach.  Co.  v.  Binns,  77  S.  E.  443,  —  Ga.  App.  — . 
Where  a  purchaser  is  unable  to  carry  out  his  contract,  the  con- 


THE  CONTKACT  OP  AGENCY.  21 

tract  witH  the  broker  is  cancelled.  Riggs  v.  Tumbull,  105  Md. 
135,  66  A.  13,  8  L.  E.  A.  (N.  S.)  824.  Authority  conferred  on 
a  partnership  to  sell  real  estate  is  terminated  on  the  dissolution 
of  the  partnership.  Larson  v.  Newman  (N.  D.  Sup.  '09),  121 
N.  W.  202;  Schlan  v.  Engenbacher,  107  N.  E.  107,  265  111.  626, 
L.  E.  A.  1915,  C.  576.  Dissolution  of  a  firm  of  brokers  did  not 
terminate  a  contract  giving  them  the  right  to  sell  land  for  a 
certain  commission,  where  their  dissolution  agreement  expressly 
continued  the  business  as  to  the  contract  involved.  Kendrick  v. 
Hansen,  170  P.  675,  —  Cal.  App.  — .  The  owner  of  a  lot,  who 
had  placed  it  in  a  broker's  hands  for  sale  wrote  him  that  she 
felt  at  liberty  to  withdraw  ' '  from  the  proposition  under  consid- 
eration," if  she  chose.  The  broker  replied  that  upon  receipt  of 
her  letter  he  had  seen  his  client,  but  could  not  make  the  deal,  and 
that  it  looked  like  the  matter  was  closed,  unless  she  would  accept 
a  lower  offer.  Held,  That  the  broker's  letter  terminated  the 
agency  at  the  time  of  mailing,  and  he  was  not  entitled  to  com- 
missions on  a  sale  of  the  lot  negotiated  by  him  next  day.  Jackson 
v.  Parrish,  157  Ala.  584,  47  S.  1014;  Hay  good  v.  Parrish,  157 
Ala.  584,  47  S.  1015. 

Under  the  stipulations  of  a  contract  listing  a  farm  with  the 
broker  for  sale,  that  if  the  farm  should  be  sold  by  the  owner, 
after  withdrawal  from  the  broker,  to  a  customer  to  whom  the 
broker  had  recommended  it,  or  who  had  learned  that  it  was 
for  sale,  directly  or  indirectly,  from  the  broker,  the  owner 
would  pay  a  designated  commission,  the  owner  is  liable  for 
the  commission  on  a  sale  to  a  customer  to  whom  the  broker 
recommended  the  farm,  whether  such  sale  was  effected,  in  whole 
or  in  part,  by  reason  of  such  recommendation  or  not.  Strout  v. 
Hublard  (Me.  Sup.  '08),  71  A.  1020;  Fifer  v.  Lewis,  183  111. 
App.  349 ;  Provident  Trust  Co.  v.  Darrough,  78  "N".  E.  1030,  168 
Ind.  20;  Ewan  v.  Power,  178  S.  W.  1092,  165  Ky.  806;  Burt  v. 
Stringfellow,  143  P.  234,  45  Utah,  207;  Cannon  v.  Bates,  80 
S.  E.  581,  115  Va.  711 ;  Peters  v.  Holmes,  45  Pa.  Super.  Ct.  278; 
Ellison  v.  Chappell,  168  K  Y.  Supp.  376,  181  App.  Div.  263. 

Where  an  owner  employing  a  broker  to  procure  a  purchaser  of 
property  terminated  the  authority  of  the  broker,  after  receiving 
an  offer  from  the  person  with  whom  the  broker  was  negotiating, 
and  subsequently  dealt  directly  with  such  person,  and  made  a 


22  AMERICAN   LAW  REAL   ESTATE   AGENCY. 

sale  for  a  price  over  twice  as  much  as  the  offer  to  the  broker, 
the  broker  was  not  entitled  to  commissions,  for  his  authority  had 
been  terminated  in  good  faith,  and  not  to  avoid  the  payment  of 
commissions.  Gardner  v.  Pierce,  116  N.  Y.  S.  155;  Walker  v. 
Baldwin  &  Frick,  68  A.  25,  106  Md.  619.  Compare  Sec.  687a. 

Where  the  sub-agent  derives  his  authority  solely  from  the  agent 
no  notice  is  required  to  be  given  by  the  principal  to  the  sub-agent 
of  the  revocation  of  the  agent's  authority;  but  where  the  sub- 
agent  was  appointed  by  and  with  the  authority  of  the  principal, 
he  is  the  agent  of  the  principal,  and  notice  should  be  given  to 
him  of  the  revocation  of  his  authority.  Mechem  on  Ag.,  Sec.  227. 

A  contract  giving  an  agent  the  exclusive  right  to  find  a  pur- 
chaser for  a  farm  within  a  given  time  is  not  breached  by  a  sale 
by  the  owner  at  public  auction,  through  the  medium  of  an  auc- 
tioneer acting  under  his  immediate  direction.  Ingold  v.  Symons, 
111  K  W.  802,  134  Iowa,  206.  An  agreement  by  the  president 
of  a  corporation  with  a  real  estate  broker  that,  so  long  as  he  re- 
mained president,  it  would  not  purchase  certain  tracts  of  land 
through  anyone  but  the  broker,  is  not  binding  upon  the  company 
after  the  resignation  of  the  president,  although  he  remained  a 
director  and  one  of  the  committee  in  charge  of  the  purchase  of 
that  property.  Foss  v.  N.  Y.  Gen.  &  H.  R.  R.  Co.,  146  N.  Y. 
Supp.  930,  161  App.  Div.  681;  judg.  aff'd  112  N.  E.  1059,  2ir 
N.  Y.  727.  Where  defendant  gave  plaintiff  authority  to  sell  land, 
and  when  plaintiff,  after  reasonable  effort,  failed  to  make  a  sale 
on  the  terms  specified,  defendant  withdrew  authority  in  good 
faith,  he  was  not  liable  to  plaintiff  for  a  commission  for  a  sale 
made  over  a  year  later  on  a  different  basis,  although  to  a  pur- 
chaser originally  introduced  by  plaintiff.  Bodine  v.  Penn  Lumber 
Co.,  194  S.  W.  226,  —  Ark.  Sup.  — .  A  broker  who  produces  a 
Syndicate  as  purchaser  within  the  time  fixed  is  not  entitled  to 
his  commission  where  only  one  of  the  members  of  the  syndicate 
had  signed  the  syndicate  agreement  prior  to  the  expiration  of  the 
broker's  agency.  Weitbrec  v.  Morris,  163  P.  1119,  —  Cal.  App. 
— .  Principal  selling  to  a  purchaser  produced  by  broker,  held 
liable  for  the  reasonable  value  of  broker's  services,  though  he  did 
not  know  the  purchase  was  so  induced.  Ford  v.  Cole,  195  S.  W. 
661,  —  Tex.  Civ.  App.  — .  When  the  relation  between  principal 
and  broker  is  found  to  have  existed,  it  continues  until  the  agent 


THE  CONTRACT  OF  AGENCY.  23 

in  dealing  with  principal's  property  notified  principal  he  desired 
to  deal  at  arm's  length  with  purchaser,  disclosing  all  facts  relat- 
ing to  the  subject-matter  of  the  contract  while  the  agency  ex- 
isted. Clark  v.  Rogers  Foundry  &  Mfg.  Co.,  199  S.  W.  576,  — 
Mo.  App.  — .  Where  a  real  estate  agent  places  his  principal  in 
touch  with  purchaser,  and  thereafter  principal  terminates  agency 
and  completes  sale  to  such  purchaser,  agent  may  recover  his  com- 
mission. Johnson  v.  Columbia  Mer.  Trust  Go.,  201  S.  W.  365. 
Where  an  agent  in  good  faith  expends  time  and  labor,  but  has 
not  had  reasonable  opportunity  to  avail  himself  of  results,  prin- 
cipal can  not  terminate  agency  and  use  such  services  without 
compensating  the  agent.  Id. 

Sec.  16.    A  contract  coupled  with  an  interest. 

An  interest  in  the  land  itself,  as  distinguished  from  the  pro- 
ceeds of  it,  is  the  distinguishing  feature  of  a  power  coupled  with 
an  interest.  Hunt  v.  Ronsmanier,  8  Wheat.  (TJ.  S.)  174;  Beck  v. 
Howard,  178  K  W.  579,  —  S.  D.  Sup.  — .  A  contract  was  held 
to  be  coupled  with  an  interest  where  a  broker  was  employed  to 
sell  land  procured  in*  an  exchange,  the  services  rendered  by  him 
in  effecting  the  trade  being  in  part  the  consideration  for  the  sec- 
ond employment,  and  such  employment  could  not  be  revoked  at 
the  mere  pleasure  of  the  principal.  Bird  v.  Phillips,  115  Iowa, 
703,  87  N.  W.  414.  An  agent  to  receive  half  the  profits  for 
selling  land  is  given  an  interest  only  in  the  profits  of  the  land 
sold,  not  in  that  unsold.  Bickford  v.  Searles,  41  N".  Y.  S.  148, 
9  App.  Div.  158,  75  N".  Y.  St.  606.  Authority  to  retain  commis- 
sions from  the  purchase  money  is  not  a  power  coupled  with  an 
interest.  Hall  v.  Gambrill,  92  Fed.  32,  34  C.  C.  A.  190.  One 
authorized  to  lay  off  land  into  lots  and  sell,  the  proceeds  above  a 
certain  amount  to  be  divided  with  the  owner,  has  not  a  power 
coupled  with  an  interest.  Lemoyne  v.  Quimby,  70  111.  399 ;  Green 
v.  Cole,  103  Mo.  70,  15  S.  W.  317.  It  therefore  follows  that 
mere  commissions  to  be  earned  by  the  agent  in  selling  property 
do  not  constitute  an  agency  coupled  with  an  interest.  Rowan  v. 
Hull,  55  W.  Va.  335,  47  S.  E.  92 ;  Lindheim  v.  Gen.  Nat.  Realty, 
etc.  Co.,  97  N.  Y.  S.  619,  111  App.  Div.  275;  Mueller  &  Martin 
v.  Goddard,  130  S.  W.  1083,  140  Ky.  238;  W.  B.  Martin  &  Son, 


24  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

v.  Lamkln,  188  111.  App.  431 ;  Chase  v.  Chapman,  131  P.  615,  89 
Kan.  196;  Alexander  v.  Sherwood  Co.,  77  S.  E.  1027,  72  W.  Va. 
195,  49  L.  R.  A.  (N.  S.)  985. 

Agreement  whereby  land  broker  was  given  the  exclusive  right 
to  sell  land  for  a  period  of  one  year,  in  consideration  of  an  ad- 
vancement of  money  wherewith  to  develop  and  advertise  the  land, 
and  whereby  broker  was  to  have  a  stipulated  share  of  the  profits, 
after  owner  received  a  specified  amount  of  proceeds  of  sale,  was 
not  an  agency  agreement  so  coupled  with  an  interest  as  to  make 
it  irrevocable.  Atlantic  Coast  Realty  Co.  v.  Townsend,  98  S.  E. 
684,  —  Va.  Sup.  — . 

Sec.  17.    Special  contracts  with  brokers  for  the  sale  of  real 
estate. 

To  entitle  a  broker  to  commissions  or  compensation  a  con- 
tract, express  or  implied,  is  necessary.  Castner  v.  Richardson, 
18  Colo.  496,  33  Pac.  163;  Day  v.  Hale,  50  111.  App.  115; 
Stephen  v.  Scott,  43  Kan.  285,  23  P.  555 ;  Thomas  v.  Merrifield, 
7  Kan.  App.  669,  53  Pae.  891 ;  Holden  v.  Stark,  159  Mass.  503, 
34  N.  E.  1069 ;  Brooks  v.  Leathers,  112  .Mich.  463,  70  N.  W. 
1099 ;  Nolan  v.  Swift,  111  Mich.  56,  69  N.  W.  96 ;  Downing  v. 
Buck,  135  Mich.  636,  98  N.  W.  388;  Steidl  v.  McClymonds,  90 
Minn.  205,  95  N.  W.  906;  Crosby  v.  St.  Paul  Lake  Ice  Co., 
74  Minn.  82,  76  N.  W.  958 ;  Coffin  v.  Linxweiler,  34  Minn.  320 ; 
Kinder  v.  Pope,  106  Mo.  App.  506,  80  S.  W.  315;  Whiteley  v. 
Terry,  82  N.  Y.  S.  89,  83  App.  Div.  197 ;  McVicker  v.  Roche, 
77  N.  Y.  S.  501,  74  App.  Div.  397;  Fowler  v.  Hosche,  65  N.  Y. 
S.  638,  53  App.  Div.  327;  Whitehause  v.  Drisler,  56  N.  Y.  S. 
95,  37  App.  Div.  525;  Von  Herrmann  v.  Wagner,  30  N.  Y.  S. 
991,  81  Hun,  431 ;  Johnson  v.  Whalen,  13  Okla.  320,  74  P.  503 ; 
Addison  v.  Wannamaker,  185  Pa.  St.  536,  39  A.  1111 ;  Copeland 
v.  Stonetom  Tan.  Co..  142  Pa.  St.  446,  21  A.  825;  Pipkin  v. 
Home  (Tex.  Civ.  App.  '02),  68  S.  W.  1000;  Ehrenroth  v. 
Putman  (Tex  Civ.  App  '00),  55  S.  W.  190;  Clammer  v.  Eddy, 
41  Colo.  235,  92  P.  722;  Ooode  v.  Sears,  226  S.  W.  463,  —  Tex. 
Civ.  App.  — . 

Mere  consent  by  the  owner  to  the  rendition  of  the  services 
is  insufficient,  even  where  they  result  in  a  sale  or  exchange  of  the 
property,  where  the  services  were  unsolicited.  Merrill  v.  Lathan, 


THE  CONTRACT  OF  AGENCY.  25 

8  Colo.  App.  263,  45  P.  524;  Atwater  v.  Lockwood,  39  Conn.  45; 
Phelps  v.  Hale,  43  Colo.  255,  95  P.  925 ;  Viley  v.  Pettit,  96  Ky. 
576,  16  Ky.  L.  R.  650,  286,  29  S.  W.  438;  Wilson  v.  Clark,  54 
Minn.  341,  56  N.  W.  40;  Pierce  v.  Thomas,  4  E.  D.  Smith  (N. 
Y.),  354;  Haase  v.  Schneider,  98  1ST.  Y.  S.  587,  112  App.  Div. 
336;  Goodspeed  v.  Robinson,  1  Hilt.  (N.  Y.),  423;  Goode  v. 
Sears,  226  S.  W.  463,  —  Tex.  Civ.  App.  — .  Contra,  Kinder  v. 
Pope,  106  Mo.  App.  536,  80  S.  W.  315. 

A  person  acting  as  a  broker  in  the  sale  of  real  estate,  but 
not  employed  as  such,  will  not  be  entitled  to  recover  brokerage, 
unless  it  should  appear  that  the  seller  knew,  before  the  sale 
was  consummated,  that  the  plaintiff  acted  as  a  broker.  Tink- 
ham  v.  Knox,  18  N.  Y.  S.  433,  aff  'd  2  Miss.  Rep.  579,  21  N.  Y. 
S.  954;  Pallentine  v.  Mercer,  130  Mo.  App.  605,  109  S.  W.  1037. 

Where  a  broker  asks  and  obtains  the  price  of  land  from  the 
owner,  this,  without  more,  does  not  establish  an  employment 
of  agency.  Stephen  v.  Bailey,  149  Ala.  256,  42  S.  740;  Castner 
v.  Richardson,  18  Colo.  496,  33  P.  163;  Denton  v.  Abrams,  105 
N.  Y.  S.  2,  120  App.  Div.  593;  White  v.  Templeton,  79  Tex. 
454,  15  S.  W.  483 ;  Dunn  v.  Price,,  87  Tex.  318,  28  S.  W.  681 ; 
Meston  v.  Davies  (Tex.  Civ.  App.  96),  36  S.  W.  805;  Phelps  v. 
Hale,  43  Colo.  255,  95  P.  925. 

Merely  introducing  a  purchaser  to  the  owner  is  insufficient 
to  create  a  contract  of  employment,  unless  his  character  as  agent 
was,  at  the  time,  disclosed  to  the  owner.  Keener  v.  Harrod,  2 
Md.  63;  Stephens  v.  Bailey  &  Howard,  42  S.  740,  149  Ala.  256. 
Contracts  with  brokers  for  the  sale  of  realty  are  pre- 
sumptively entered  into  in  good  faith,  and  courts  should 
protect  the  interests  according  to  the  true  meaning  of  the  con- 
tracts. Carder  v.  O'Neill,  176  Mo.  401,  75  S.  W.  764.  A  con- 
tract to  sell  real  estate  may  be  created  by  a  letter  to  the  broker. 
Dekremen  v.  Clothier,  96  N.  Y.  S.  525,  109  App.  Div.  481; 
Jasper  v.  Wilson  (N.  M.  Sup.  '08),  94  P.  951;  Obenauer  v. 
Solomon,  151  Mich.  570,  115  N.  W.  696.  To  create  such  a 
contract  the  letter  must  be  specific  and  certain.  Fay  v.  Sullers, 
15  Okla,  171,  81  P.  426.  Where  an  owner  said  he  would  allow 
certain  commissions  to  a  broker  if  he  procured  a  purchaser  to 
whom  the  owner  would  be  willing  to  sell,  a  contract  was  estab- 
lished. Oliver  v.  Katz,  131  Wis.  409,  111  N.  W.  509.  Unless 


26  AMERICAN  LAW  BEAL  ESTATE  AGENCY. 

a  different  intention  clearly  appears,  authority  to  sell  will  be 
limited  to  authority  to  find  a  purchaser.  Brown  v.  Gilpin,  75 
Kan.  773,  90  P.  267;  Eoss  v.  Craven  (Neb.  Sup.  '09),  121  N. 
W.  451. 

A  contract  with  a  broker  for  six  months  to  sell  realty  provid- 
ing that,  "at  such  time  as  a  sale  shall  be  effected,"  a  commis- 
sion shall  be  paid,  does  not  entitle  the  broker  to  a  commission 
on  a  sale  by  the  owner,  unassisted  by  the  broker,  within  the 
time  named.  Davis  v.  Van  Tassel,  107  N.  Y.  S.  910.  Employ- 
ing a  broker  to  procure  a  purchaser  for  real  estate,  payment 
of  commissions  to  be  made,  "as  soon  as  a  deal  is  made  for 
making  such  contract  or  deal,"  citing  owner  to  a  prospective 
buyer,  or  being  instrumental  in  any  manner  whatever,  provided 
for  a  commission  on  making  a  sale  or  producing  a  purchaser. 
McDermott  v.  Mahoney,  115  N.  W.  32,  106  N.  W.  925,  139  Iowa, 
292,  affirmed.  Finding  a  customer,  with  whom  the  principal 
concludes  a  contract  of  purchase,  does  not  give  any  right  to 
commissions,  unless  the  broker  was  the  procuring  cause  of  the 
transaction.  Quimby  v.  Tedford,  4  Colo.  App.  210,  35  P.  276; 
Anderson  v.  Smythe,  1  Colo.  App.  253,  28  P.  478;  Babcock  v. 
Merritt,  1  Colo.  App.  84,  27  P.  882;  Neufeld  v.  Oren,  60  111. 
App.  350;  Watta  v.  Howard,  51  111.  App.  243;  Clark  v.  Nessler, 
50  111.  App.  550;  Cottier  v.  Johnson,  23  Ky.  L.  B.  2453,  67  S. 
W.  830;  Taylor  v.  Martin,  109  La.  137,  33  S.  112;  Studer  v. 
Bijson,  92  Minn.  388,  100  N.  W.  90 ;  Francis  v.  Eddy,  49  Minn. 
447,  52  N.  W.  42;  Cathcart  v.  Bacon,  47  Minn.  34,  49  N.  W. 
331;  Putnam  v.  Howe,  39  Minn.  363,  40  N.  W.  258;  Armstrong 
v.  Wahn,  29  Minn.  126,  12  N.  W.  345 ;  McCrary  v.  Kellogg,  106 
Mo.  App.  597,  81  S.  W.  465;  Crowley  v.  Somerville,  70  Mo. 
App.  376;  Ramsey  v.  West,  31  Mo.  App.  676;  Frenzer  v.  Lee 
(Neb.  Sup.  '02),  90  N.  W.  914;  Wylie  v.  Marine  Nat.  Bk.,  61  N. 
Y.  415 ;  Phinney  v.  Chesebro,  87  N.  Y.  App.  Div.  409,  84  N.  Y.  S. 
449 ;  Johnson  v.  Lord,  54  N.  Y.  S.  922,  35  App.  Div.  325 ;  Ware 
v.  Dos  Passos,  4  N.  Y.  App.  Div.  32,  38  N.  Y.  S.  673 ;  Woottey  v. 
Buhler,  73  Hun,  158,  25  N.  Y.  S.  1045 ;  South  v.  Seattle,  etc., 
R.  Co.,  72  Hun,  202,  25  N.  Y.  S.  368;  Hay  v.  Platt,  66  Hun, 
488,  21  N.  Y.  S.  362 ;  White  v.  Twitchings,  26  Hun,  503 ;  Mara- 
cello,  v.  Odell,  3  Daly  (N.  Y.),  123;  Harris  v.  Boertnell,  2  Daly 
(N.  Y.),  189;  Woods  v.  Barton,  47  N.  Y.  S.  184,  21  Misc.  326; 
Randruff  v.  Schroeder,  46  N.  Y.  S.  943,  21  Misc.  52 ;  Burke  v. 


THE   CONTKACT  OF  AGENCY.  27 

Pfeffer,  68  N.  Y.  S.  799,  34  Misc.  774;  Brown  v.  Shelton  (Tex. 
Oiv.  App.  '93),  23  S.  W.  483;  Stevenson  Co.  v.  Oppenheimer,  104 
A.  88,  —  N.  J.  Sup.  — .  See  also  Sec.  446. 

A  letter  written  to  a  broker  advising  him  that  if  he  could 
purchase  certain  described  real  estate  the  signer  thought  he 
would  be  ready  to  purchase  the  same  on  the  succeeding  Mon- 
day at  a  specified  price  was  not  a  sufficient  note  or  memorandum 
of  a  contract  to  employ  a  broker  to  purchase  the  property  re- 
quired by  Civil  Code,  section  1624.  Logan  v.  McMidlen,  4  Cal. 
App.  154,  87  P.  285. 

A  broker  mailed  to  his  client  a  blank  contract  of  employment 
for  his  signature,  containing  the  price,  terms  of  sale,  and  a 
stipulation  for  five  per  cent,  commissions  The  owner  did  not 
sign  the  contract,  but  wrote  that  the  broker  might  sell  to  any 
person  not  an  Armenian.  Held,  that  the  owner's  reply  was  an 
express  acceptance  of  each  of  the  terms  of  the  contract  sub- 
mitted, including  the  rate  of  commission.  Ba/ird  v.  Loescher,  98 
P.  49  (Cal.  App.  '08). 

Defendant  having,  before  acceptance,  withdrawn  his  offer  for 
(the  purchase  of  land  carried  by  plaintiff  on  his  books  for  sale 
for  the  owner,  no  promise  or  word  with  reference  to  the  pay- 
ment of  commissions  by  defendant  being  shown,  is  not  liable  for 
commissions.  Donnelly  v.  CJietejian,  115  N.  Y.  S.  125. 

Plaintiff  having  a  second  mortgage  on  a  mill,  the  owner  of 
which  offered  him  ten  per  cent  commission  for  selling  it,  told  de- 
fendant that  if  he  would  sell  the  mill  he  could  have  the  commis- 
sion, which  the  owner  would  pay,  was  not  liable  for  the  commis- 
sion. Edwards  v.  Rich,  180  S.  W.  415,  —  Mo.  App.  — .  Con- 
tract contained  in  letters  authorizing  a  broker  to  sell  farm  lands, 
held  to  fix  a  specified  price  at  which  the  broker  might  sell  and 
to  hold  good  for  six  months,  providing  the  owner  did  not  in  the 
meantime  make  a  sale  himself,  which  right  was  expressly  re- 
served. Wing  v.  Davis,  215  S.  W.  636,  --  Ark.  Sup.  — .  The 
ordinary  rule  that  a  real  estate  agent  is  entitled  to  his  commission 
when  he  procures  a  purchaser  ready,  willing  and  able  to  buy,  or 
when  he  brings  the  buyer  and  seller  together,  who  make  a  bargain 
on  different  terms  than  those  theretofore  dictated  to  agent,  does 
not  apply  where  his  commission  is  governed  by  a  special  contract 
between  himself  and  his  principal.  Karr  v.  Moffett,  185  P.  890, 


28  AMERICAN  LAW  REAL   ESTATE  AGENCY. 

re.  den.  187  P.  683,  —  Kan.  Sup.  — .  An  agreement  by  a  real 
estate  broker  to  procure  a  purchaser  implies  that  the  purchaser 
shall  be  able  to  buy,  or  that  the  seller  and  purchaser  must  be 
bound  to  each  other  in  a  valid  contract.  McCartney  v.  Shares, 
188  P.  663,  —  Okl.  Sup.  — . 

Sec.  18.     Authority  conferred  on  real  estate  brokers  and 
agents. 

One  buying  from  a  non-resident  owner,  through  a  real  estate 
broker,  is  bound  to  ascertain  his  authority  and  the  correspondence 
by  which  it  is  established.  Merritt  v.  Wasenich,  49  Fed.  785; 
Sullivant  v.  Jaliren,  71  Kan.  127,  79  P.  1071;  Mechem  on  Ag., 
sees.  276,  288,  290;  El  Reno  Grocery  Co.  v.  Stocking,  127  N.  E. 
642,  —  111.  Sup.  — .  Authority  to  negotiate  a  sale  to  one  per- 
son, on  particular  terms,  is  insufficient  to  authorize  a  subsequent 
sale  to  a  different  person.  Graves  v.  Horton,  38  Minn.  66,  35 
N.  W.  568;  compare  Smith  v.  Mayfield,  60  111.  App.  266.  A 
letter  from  a  principal  is  sufficient  authority  for  the  agent  to  sell 
according  to  its  terms.  Stadelman  v.  Fitzgerald,  14  Neb.  290; 
Montgomery  v.  Amster  (T.  C.  A.  '09),  122  S.  W.  307;  West  v. 
Mills,  82  N.  Y.  S.  473,  83  App.  Div.  629;  Johnson  v.  Huber 
(Kan.  Sup.  '09 ),  103  P.  99.  Authority  to  sell  for  cash  and  time 
does  not  warrant  a  sale  for  more  cash  and  less  time.  Speer  v. 
Craig,  16  Colo.  478,  27  Pac.  891;  Taylor  v.  Read  (Tex.  C.  A. 
'08),  113  S.  W.  191;  McFadden  v.  Crisler,  213  S.  W.  912,  — 
Tenn.  Sup.  — .  Authority  to  sell  for  half  cash  is  complied 
with  by  a  sale  for  cash  on  delivery  of  the  deed.  With- 
erell  v.  Murphy,  147  Mass.  417,  18  N.  E.  215-.  Without  special 
authority  an  agent  to  collect  rents  can  not  pay  a  debt  of  his 
principal.  Phillips  v.  Belden,  2  Edw.  (N.  Y.)  Ch.  1.  Author- 
ity to  locate  and  survey  land  confers  no  authority  to  sell.  Moore 
v.  Lockett,  2  Bibb.  (Ky.)  67.  Authority  to  sell  and  convey 
lands  for  cash,  includes  authority  in  the  agent  to  receive  pay- 
ment of  the  purchase  money.  Yerby  v.  Grigsby,  9  Leigh.  (Va.) 
387.  Compare  Halsell  v.  Renfrew,  14  Okl.  674,  78  Pac.  318, 
affirmed  202  U.  S.  287.  Authority  to  make  contracts  for  the 
sale  of  lands  authorized  the  agent  to  receive  so  much  money 
as  is  paid  in  hand  on  the  sale,  as  an  incident  to  the  power  of 
sale.  Yerby  v.  Grigsby,  9  Leigh  (Va.),  387. 


THE  CONTEACT  OP  AGENCY.  29 

An  agent  to  sell  lands  on  credit  has  no  authority  to  receive 
payment,  nor  before  due,  nor  in  anything  but  money.  Mann 
v.  Robinson,  19  W.  Va.  49.  An  agent  has  no  authority  to  give 
an  extension  of  time  to  the  purchaser  to  make  a  payment. 
Gerrish  v.  Maker,  70  111.  470.  Authority  to  employ  lawyers 
to  secure  the  right  and  title  of  the  principal  to  certain  land, 
does  not  authorize  a  conveyance  of  half  of  the  land  to  them 
for  their  services  and  for  their  agreeing  to  provide  for  the  ex- 
penses of  a  suit  to  confirm  the  title,  and,  in  case  of  success, 
to  pay  to  them  a  certain  sum  in  addition.  Blum  v.  Robertson, 
24  Cal.  128.  An  agent  appointed  to  rent  and  care  for  real 
estate  has  no  authority,  in  his  own  name,  to  recover  possession 
from  the  holder  of  a  tax  title.  McHenry  v.  Painter,  58  Iowa, 
365.  An  agent  authorized  to  enter  into  a  written  contract  for 
the  sale  of  real  estate  can  not  enter  into  a  verbal  agreement 
therefor.  Barmig  v.  Peirce,  5  Watts  &  S.  (Pa.)  548.  To  sell 
in  lots  does  not  authorize  a  sale  otherwise,  and,  if  made,  the 
same  will  be  set  aside.  Rice  v.  Tavenier,  8  Minn.  248. 

The  receipt  of  an  agent,  authorized  to  sell  and  convey  land, 
who  enters  into  a  contract  for  his  principal  with  a  purchaser, 
binds  his  principal.  Peck  v.  Harriott,  6  Serg.  &  R.  (Pa.)  146. 
Authority  of  an  agent  to  sell  a  lot  for  $5,500  net,  does  not 
support  a  sale  for  $5,500  gross,  made  nine  months  after  when 
the  property  has  greatly  advanced  in  value.  Wassweyler  v. 
Martin,  78  Wis.  59,  46  N.  W.  890;  Colvin  v.  Blanchard,  106 
S.  W.  (Tex.  Civ.  App.  '07)  323;  Schmidt  v.  Chittenden,  98 
P.  48  (Cal.  App.  '08).  A  letter  from  a  principal  to  his  agent 
stating,  "I  am  glad  you  have  sold  the  88  acres;  now,  sell  the 
40,"  is  not,  under  the  Missouri  statute,  an  authorization  in 
writing  for  the  sale  of  the  additional  forty  acres.  Johnson  v. 
Fecht,  185  Mo.  335,  83  S.  "W.  1077.  And  a  letter  by  a  principal 
to  his  agent  stating,  "I  am  just  in  receipt  of  your  favor  of 
the  5th  inst.  regarding  sale  of  the  40-acre  tract  of  land,  and 
in  reply  would  say  as  follows:  Have  deed  made  out  and  sent 
to  me  for  signing,  as  I  can  not  say  definitely  when  I  will  be 
able  to  return,"  etc.,  the  letter  of  the  agent  replied  to,  without 
disclosing  the  name  of  the  proposed  vendee,  stated  that  the 
agent  had  sold  the  forty  acres  on  the  south  side  of  the  railroad 
for  $1,000,  and  that  "this  completes  the  sale  of  the  whole  tract 


30  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

for  $4,000,"  and  concluded  by  asking  whether  they  should  send 
the  deed  to  be  executed,  or  whether  he  would  soon  be  home. 
Held,  That  the  principal's  letter  was  insufficient  to  constitute  a 
written  ratification  of  the  sale.  Johnson  v.  Feckt,  185  Mo.  335, 
83  S.  W.  1077. 

A  contract  of  sale  executed  by  a  broker  under  stale  authority 
will  not  be  specifically  enforced.  Hall  v.  Gambrill,  92  Fed.  32, 
34  C.  C.  A.  190.  An  agreement  by  a  broker  to  give  a  pur- 
chaser possession  in  ninety  days  was  beyond  the  scope  of  his 
authority.  Hopkins  v.  Everly,  150  Pa.  St.  117,  24  A.  624,  30 
Weekly  Notes  Cas.  393.  Power  to  sell  any  or  all  of  constitu- 
ent's real  estate,  authorizes  the  sale  of  that  acquired  subse- 
quently. Fay  v.  Winchester,  4  Mete.  (Mass.)  513;  Burkey  v. 
Judd,  22  Minn.  287.  Power  to  sell  all  land  the  principal  has 
not  conveyed,  authorizes  the  sale  of  that  sold  but  not  con- 
veyed. Mitchell  v.  Maupin,  3  T.  B.  Mon.  (Ky.)  185.  In  Illi- 
nois a  power,  not  under  seal,  will  authorize  the  attorney  to 
sell  but  not  to  convey  the  land.  Watson  v.  Sherman,  84  111. 
263,  267.  A  broker  authorized  to  sell,  partly  for  cash  and 
partly  on  time,  has  discretion  to  determine  the  amount  of  the 
cash  payment.  Taylor  v.  Cox  (Tex.  Supreme  '87),  7  S.  W.  69. 
If  an  agent  be  authorized  in  fact,  though  inoperative  in  law  to 
bind  his  principal,  no  recovery  can  be  had  against  the  agent. 
Thomson  v.  Davenport,  2  Smith's  L.  C.  366;  Walker  v.  Bk.  of 
St.  N.  Y.,  9  N.  Y.  582 ;  Sheffield  v.  Ladue,  16  Minn.  388 ;  Duncan 
v.  Niles,  32  111.  532;  Scery  v.  Socks,  29  111.  313;  Abbey  v. 
Chase,  6  Gush,  (Mass.)  54;  Leronx  v.  Brown,  12  C.  B.  (Eng.) 
801;  Aspimvall  v.  Torrence,  1  Lans.  (N.  Y.)  381;  Smont  v. 
lllory,  10  M.  &  W.  (Eng.)  1.  The  mere  insertion  in  an  instru- 
ment, without  consideration,  that  it  is  irrevocable,  is  inopera- 
tive. Walker  v.  Deuison,  86  111.  162.  Authority,  in  writing, 
left  with  an  agent  after  revocation  may,  by  its  exercise,  bind 
the  principal  as  to  third  persons  without  notice.  Beard  v.  Kirk, 
11  N.  H.  397. 

A  sale  by  a  broker  at  $1,500,  one  month  after  he  said  he 
could  not  sell  at  that  price  and  asked  for  lower  terms,  was 
without  authority.  Matthews  v.  Sowle,  12  Neb.  398.  Abbrevia- 
tions used  in  the  authority  to  an  agent,  easily  understood  by 
those  familiar  with  land  titles,  did  not  make  the  authority  void 


THE  CONTRACT  OF  AGENCY.  31 

for  uncertainty.  Meline  v.  Ruffino,  129  Cal.  514,  62  P.  93. 
A  letter  to  an  agent  to  sell  real  estate,  the  buyer  to  pay  the 
commissions,  is  sufficient  authority  to  sell  on  the  terms  stated. 
Weaver  v.  Snively,  73  Neb.  35,  102  N.  W.  77.  Proof  of  an- 
thority  to  make  a  loan  does  not  give  authority  to  collect  the 
principal  or  interest.  Ortmeier  v.  Ivory,  208  111.  577,  70  N.  E. 
665.  Ordinarily  the  authority  of  an  agent  terminates  on  the 
death  of  the  principal.  Kyle  v.  Gaff,  105  Mo.  App.  672,  78  S. 
W.  1047.  A  real  estate  agent  is  bound  by  the  precise  terms 
of  his  contract,  and  the  principal  is  not  bound  by  departures 
therefrom.  Balkene  v.  Searle.  116  Iowa,  374,  89  N.  W.  1087; 
Campbell  v.  Chvse  (Kan.  Sup.  '08),  96  P.  949;  In  re  Fairmount 
Cab  Co.  (Com.  PL),  9  Pa.  Co.  Ct.  R.  201;  Hagler  v.  Ferguson 
(Tex.  Civ.  App.  '08),  111  S.  W.  673;  Jones  v.  Halleday,  2 
App.  Cas.  (D.  C.)  279.  A  contract,  in  writing,  was  held  to 
be  insufficient  in,  failing  to  state  the  amount  of  the  commissions 
to  be  paid  to  the  broker.  Zimmerman  v.  Zahender,  164  Ind. 
466,  73  N.  E.  920;  Foote  v.  Bobbins,  50  Wash.  277,  97  P.  103. 

In  New  York  a  contract  to  sell  real  estate  signed  by  a  son, 
by  direction  of  the  father,  was  held  insufficient  to  confer  au- 
thority upon  the  broker.  Cohen  v.  Boccuzzio,  86  N.  Y.  S.  187, 
42  Misc.  544.  Compare  Sec.  74.  A  contract  of  sale  made  by  an. 
agent  in  excess  of  his  authority  is  not  binding  on  his  prin- 
cipal. Strong  v.  Ross,  33  Ind.  App.  586,  71  N.  E.  918;  Stolen 
v.  Hammer,  121  Iowa,  499,  96  N.  W.  964;  Fleming  v.  Burke, 
122  Iowa,  433,  98  N.  W.  288;  Hagler  v.  Ferguson  (Tex.  Civ. 
App.  '08),  111  S.  W.  673. 

A  broker  has  no  implied  authority  to  bind  the  principal  by 
signing  a  contract  of  sale,  nor  to  fix  the  terms,  nor  materially 
to  change  the  terms  without  the  principal's  consent.  Sullivant 
v.  Jahren,  71  Kan.  127,  79  P.  1071;  Larson  v.  O'Hara,  107  N. 
W.  821,  98  Minn.  71;  Hardizer  v.  Columbia,  50  Wash.  405,  97 
P.  790;  Hutchins  v.  Westheimer,  51  Wash.  539,  99  P.  577.  An 
agent  in  whose  hands  lands  are  placed  for  sale,  is  not  thereby 
authorized  to  sign  a  contract  of  sale.  Jones  v.  Howard,  234  111. 
404,  84  N.  E.  1041 ;  Rowland  v.  Hall,  106  N.  Y.  S.  55,  121  App. 
Div.  459;  Keim  v.  O'Reilly,  54  N.  J.  Eq.  418,  34  A.  1073;  Sten- 
gel v.  Sergeant  (N.  J.  Eq.),  '08,  68  A.  1106;  Ettinger  v.  Weaih- 
erhead,  29  Ohio  Cir.  Ct.  R.  137;  Gault  Lumber  Co.  v.  Pyles 


32  AMERICAN   LAW   HEAL   ESTATE   AGENCY. 

(Okla.  Supreme  '07),  92  P.  175;  Colvin  v.  Blanchard  (Texas 
Supreme  '07),  106  S.  W.  323;  Watson  v.  Milliken,  27  App.  (D. 
C.)  500;  Syllisin  v.  Hanson,  48  Wash.  608,  94  P.  187;  Flyal 
v.  Dowling  (Or.  Sup.  '09),  102  P.  178;  Light  v.  Daggett  (S.  D. 
Sup.  '09),  121  K  W.  862;  Lawson  v.  JSTt'n^  (Wash.  Sup.  '09), 
104  P.  1118. 

A  broker  to  sell  lands  has  no  authority  to  collect  or  to  receive 
the  purchase  price;  and  a  purchaser  who  pays  him,  without  ask- 
ing for  his  written  authority,  does  so  at  his  risk.  Halsell  v.  Ren- 
frow,  14  Okla.  674,  78  P.  118,  aff'd  202  U.  S.  287;  Edwards  v. 
Kilgore,  68  S.  888,  192  Ala.  343 ;  Spanagle  v.  Maple  Grove  Land 
&  Live  Stock  Co.,  177  N.  W.  164,  —  Neb.  Sup.  — ;  Feitz  v.  Goet- 
tler,  181  N.  Y.  Supp.  956.  Compare  Yerby  v.  Grigsby,  9  Leigh 
(Va.),  387.  Authority  to  a  broker  to  sell  and  bind  the  owner 
by  a  contract  must  be  certain  and  specific  as  to  terms  and  de- 
scription. Gault  Lumber  Co.  v.  Pyles  (Okla.  Supreme  '07),  92 
P.  175.  Authority  to  sell  land  for  cash  and  on  long  time  did  not 
authorize  the  broker  to  make  the  notes  for  deferred  payments 
payable  on  or  before  certain  dates.  Colvin  v.  Blanchard  (Tex. 
Civ.  App.  '07),  106  S.  W.  323.  Authority,  in  writing,  to  sell  for 
$19,000,  to  net  the  owner  18,000,  was  held  to  authorize  the  agent 
to  execute  a  contract  of  sale.  Id.  A  broker  authorized  to  sell 
for  $8,000,  3,000  cash,  is  entitled  to  commissions  on  finding  one 
willing  to  pay  cash  on  delivery  of  the  deed.  Goss  v.  Broom,  31 
Minn.  484. 

In  the  absence  of  special  authority  a  broker  has  no  power 
to  conclude  a  contract  for  the  purchase  and  sale  of  lands.  Ham- 
ilton v.  Cutts,  6  Mackey  (D.  C.),  208;  Ryan  v.  McGee,  2  Mackey 
(D.  C.),  17;  Coleman  v.  Garrigue,  17  Barber  (N.  Y.),  60;  Hal- 
sey  v.  Monterio,  92  Va.  581,  24  S.  E.  258 ;  McCutlough  v.  Hitch- 
cock, 71  Conn.  401,  42  A.  81;  Campbell  v.  Galloway,  148  Ind. 
440,  47  N.  E.  818;  Balkeme  v.  Searles,  116  Iowa,  374,  89  N. 
W.  1087;  Dickman  v.  Updike  (N.  J.  Err.  &  App.  '01),  49  A. 
712 ;  Armstrong  v.  Lowe,  76  Cal.  616,  18  P.  758 ;  Jones  v.  Halla- 
day,  2  App.  Cas.  (D.  C.)  277;  Mannix  v.  Hildreth,  2  App.  Cas. 
(D.  C.)  259;  Roach  v.  Coe,  1  E.  D.  Smith  (N.  Y.),  175;  Brand- 
nip  v.  Britton,  11  N.  D.  376,  92  N.  W.  453;  Carstens  v.  Mc- 
Reavy,  1  Wash.  359  25  P.  471 ;  Keim  v.  Lindley,  54  N.  J.  Eq. 
418,  30  A.  1063;  Lee  v.  Lloyd,  181  N.  Y.  Supp.  295. 


THE  CONTRACT  OF  AGENCY.  33 

A  real  estate  broker  employed  to  find  a  purchaser  is  not  au- 
thorized to  execute  a  contract  of  sale  in  behalf  of  his  principal; 
his  authority  is  limited  to  the  power  of  finding  a  purchaser 
satisfactory  to  the  principal,  where  there  is  no  stipulation, 
express  or  implied,  to  the  contrary.  Rutenberg  v.  Main,  47 
Cal.  213;  Bundle  v.  Cutting,  18  Colo.  337,  32  P.  994;  Malone 
v.  McCullough,  15  Colo.  460,  24  P.  1040 ;  Johnson  v.  Dodge,  17 
111.  433;  Gilbert  v.  Baxter,  71  Iowa,  327,  32  N.  W.  364;  Stillman 
v.  Fitzgerald,  37  Minn.  186,  33  N.  W.  564;  Scull  v.  Brontim,  55 
N.  J.  Eq.  489,  37  A.  740;  O'Reilly  v.  Keim,  54  N.  J.  Eq.  418, 
34  A.  1073;  Edwards  v.  Davidson  (Tex.  Civ.  App.  '04),  79  S.  W. 
48;  Kramer  v.  Blair,  88  Va.  456,  13  S.  E.  914;  Davis  v.  Gordon, 
87  Va.  559,  13  S.  E.  35 ;  Cox  v.  Chalfant,  181  P.  548,  -  -  Kan. 
Sup.  — ;  Slater  v.  Rauer,  185  P.  864,  —  Cal.  App.  — ;  Wiggam 
v.  Shouse,  185  P.  896,  —  Kan.  Sup.  — . 

While  it  is  true  that  the  power  to  sign  the  name  of  the 
principal  may  be  given  verbally,  the  words  used  for  the  pur- 
pose should  be  distinct  and  clear  in  their  meaning  and  import, 
and  should,  with  the  requisite  degree  of  certainty,  manifest 
the  intention  of  the  principal  to  do  something  more  than  merely 
to  employ  a  broker.  Duffy  v.  Ho'bsom.,  40  Cal.  240. 

Where  an  agent  is  employed  to  secure  a  purchaser  for  real 
estate  within  a  certain  time,  for  certain  commissions,  he  can 
not  recover  unless  he  furnishes  a  purchaser  within  that  time. 
Ice  v.  Maxwell,  61  West  Va.  9,  55  S.  E.  899. 

Laws  of  1893,  p.  161,  provides  that  in  cities  of  300,000  in- 
habitants or  more,  any  person  who  shall  offer  for  sale  any  real 
property,  without  the  written  authority  of  the  owner  of  such 
property,  etc.,  shall  be  deemed  guilty  of  a  misdemeanor.  De- 
fendants, husband  and  wife,  at  plaintiff's  request,  delivered 
to  plaintiff  a  written  option  prepared  by  defendants,  whereby 
they  agreed  to  sell  certain  property  for  a  given  price  and  on 
the  day  following,  defendant's  wife,  the  owner  of  the  prop- 
erty, offered  in  writing  to  pay  plaintiff  a  certain  commission 
on  a  sale  at  the  price  named.  Held,  that  the  two  writings,  when 
construed  together,  authorized  plaintiff  to  sell  the  property. 
Holbrook-Blackivell  R.  E.  Co.  v.  Hartman,  128  Mo.  App.  228, 
106  S.  W.  1115. 

The  ordinary  authority  of  a  real  estate  agent  to  sell  land 
is  simply  to  find  a  purchaser,  he  having  no  power  to  bind  his 


34  [AMERICAN  LAW  BEAL  ESTATE  AGENCY. 

principal  by  a  contract  of  sale,  unless  it  appears  that  it  was 
intended  to  confer  upon  him  such  additional  authority.  Stem- 
ler  v.  Bass,  153  Cal.  79,  96  P.  809;  Weatherhead  v.  Ettinger,  78 
0.  S.  104,  84  N.  E.  598;  Foss  Inv.  Co.  v.  Tier,  49  Wash.  446, 
95  P.  1017. 

Ordinarily  a  broker  has  no  implied  authority  to  buy  or  sell 
the  property  of  another  in  his  own  name.  Reed  v.  Light,  170 
Ind.  550,  85  N.  E.  9 ;  Fort  v.  Cummins,  128  N.  E.  624,  —  Ind. 
App.  — . 

Though  the  expression  "to  sell"  is  sometimes  used  in  the 
sense  of  an  executed  contract  of  sale,  or  an  agreement  to  sell, 
as  denned  by  Civil  Code,  Sec.  1727,  the  expression,  when  used 
in  a  contract  giving  a  real  estate  broker  the  exclusive  right 
"to  sell"  real  estate,  has  acquired  a  restricted  meaning,  and, 
standing  alone,  the  words  "to  sell"  are  not  sufficient  to  au- 
thorize the  broker  to  enter  into  a  contract  of  sale  binding  the 
owner.  Bacon  v.  Davis,  9  Cal.  App.  65,  98  P.  71. 

Where  a  broker's  contract  of  authority  authorized  him  to 
negotiate  for  a  sale  of  the  lands  in  question  at  $5  per  acre  for 
thirty  days,  and  the  owners  bound  themselves  to  execute  good 
conveyances  to  such  purchasers  as  the  broker  might  produce,  on 
payment  of  the  price,  the  term  "negotiate"  imported  authority 
on  the  part  of  the  broker  to  make  a  binding  sale  agreement  and 
the  contract  therefore  did  not  limit  the  authority  to  find  a  pur- 
chaser ready  and  able  to  pay  the  price.  Combes  v.  Adams,  63 
S.  E.  186;  Combes  v.  Stewart,  150  N.  C.  64 

An  agent  employed  to  sell  real  estate,  and  not  authorized  to 
execute  a  contract  of  sale  or  sn  instrument  of  conveyance,  is. 
only  an  agent  to  find  a  buyer.  Manker  v.  Tough  (Kan.  Sup. 
'08),  98  P.  792. 

Where  before  the  time  limited  for  selling  the  property  ex- 
pired, the  broker  requested  an  extension  of  time,  which  the 
principal  refused,  the  fact  that  in  doing  so  he  stated  to  the 
broker  that  he  hoped  that  he  would  sell  the  property,  and  that 
he  would  be  glad  to  assist  him,  did  not  confer  an  authority 
upon  the  broker  to  sell  the  property  after  the  expiration  of  the 
time  limited.  La  Force  v.  Wash.  Univ.,  106  Mo.  App.  517, 
81  S.  W.  209. 

Under  the  Code  defining  "sell"  as  a  contract  by  which  one 


THE  CONTRACT  OP  AGENCY.  35 

engages  for  a  price  to  transfer  to  another  a  certain  thing,  etc., 
an  instrument  executed  by  an  owner  employing  a  broker  to 
procure  a  purchaser  of  real  estate,  which  recites  that  in  con- 
sideration of  the  services  of  the  broker  the  owner  authorizes 
him  "to  sell  for  me,  in  my  name,  and  receipt  for  deposit  there- 
on," for  a  specified  time,  the  property  described,  for  a  price 
fixed,  and  agrees  to  "sell  and  convey  by  a  good  .  .  .  grant," 
etc.,  gives  the  broker  authority  to  contract  for  the  sale  to  a 
purchaser  procured  by  him.  Bacon  v.  Davis,  9  Cal.  App.  65, 
98  P.  71. 

Where  a  broker's  contract  of  authority  authorized  him  to 
negotiate  for  a  sale  of  the  land  in  question  at  $5  per  acre  for 
thirty  days,  and  the  owners  bound  themselves  to  execute  good 
conveyances  to  such  purchasers  as  the  brokers  might  produce, 
on  payment  of  the  price,  the  term  "negotiate"  imported  au- 
thority on  the  part  of  the  brokers  to  make  a  binding  contract 
of  sale,  and  the  contract  did  not  therefore  limit  their  authority 
to  finding  a  purchaser  ready,  able  and  willing  to  pay  the  price. 
Combes  v.  Adams,  150  N.  C.  64,  63  S.  E.  186. 

An  agency  to  sell  land  confers  authority  to  sell  only  for  cash, 
and  the  agent  who  produces  a  buyer  on  different  terms  is  not 
entitled  to  any  commission.  Dreyfus  v.  Richardson,  130  P.  161, 
20  Cal.  App.  800;  Anderson  &  Rowley  v.  Howard,  155  N.  W.  261, 
175  Iowa,  4. 

A  broker,  in  the  absence  of  special  authority,  can  not  bind  his 
principal,  the  seller,  to  send  a  deed  to  a  certain  bank  for  de- 
livery, or  agree  that  payment  shall  be  made  there  and  not  at  the 
principal's  residence.  Id. 

Plaintiff's  rights  under  a  contract  to  purchase  land  from  de- 
fendant were  unaffected  by  defendant's  brokers'  act  in  agreeing 
to  sell  to  a  third  person,  where  they  were  not  authorized  to  sell ; 
defendant  did  not  ratify  their  agreement,  and  was  not  estopped 
to  deny  their  authority  before  plaintiffs  communicated  their  ac- 
ceptance of  defendant's  offer.  Wilson  v.  White,  119  P.  895,  161 
Cal.  453. 

Parties  who  deal  with  a  real  estate  broker  with  knowledge  he 
was  selling  lands  as  agent  for  the  owner  were  under  duty  to  as- 
certain the  nature  and  extent  of  the  broker's  authority,  and 
whether  he  had  been  empowered  to  contract  in  writing  for  the 
sale  of  lands.  Crumpacker  v.  Jeffry,  115  N.  E.  62,  —  Ind. 
App.  — . 


36  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

A  broker  selling  realty  has  no  authority  to  make  representa- 
tions which  confer  easements  on  a  purchaser  not  granted  by  the 
contract.  Phillips  v.  West  Eockaway  Land  Company,  163  N.  Y. 
Supp.  993,  177  App.  Div.  260.  Where  defendant  authorized  a 
broker  to  sell,  he  could  not  bind  defendant  to  sell  in  the  ab- 
sence of  specific  authorization  in  writing.  Stark  v.  Rogers,  169 
P.  146,  —  Colo.  Sup.  — . 

A  broker  authorized  to  sell  land  and  required  to  complete  a 
sale  before  a  certain  date,  and  whose  contract  with  the  purchaser 
required  the  latter  to  deliver  notes  and  mortgages  within  thirty 
days  after  delivery  of  abstracts  of  title  to  him,  which  was  later 
than  the  date  fixed,  did  not  conform  to  the  broker's  authority 
within  Park's  Ann.  Civil  Code,  sec.  3587.  Huson  v.  Dawson 
Naval  Stores  &  Lumber  Co.,  98  S.  E.  186,  —  Ga.  App.  — .  An 
agent's  authority  to  sell  real  estate  must  be  specific,  and  is  gen- 
erally closely  construed,  and  the  purchaser  must  know  that  the 
seller  is  acting  as  agent  and  not  as  principal,  and  must  become 
aware  of  the  agent's  authority,  and  where  limited  to  sell  at  a 
fixed  price  per  acre,  the  purchaser  must  know  that  the  agent  is 
without  authority  to  make  a  contract  for  sale  giving  the  pur- 
chaser an  unreasonable  time  to  consummate  the  deal.  McFadden 
v.  Crisler,  213  S.  W.  912,  —  Tenn.  Sup.  — . 

Where  an  agent  to  sell  land  had  authority  from  the  purchaser 
procured  by  him  to  sign  the  contract  for  such  purchaser,  the 
president  of  the  seller  corporation  could  make  no  valid  objection 
to  consummating  the  deal  on  the  ground  of  lack  of  authority  of 
the  agent  to  sell  to  sign  for  the  purchaser.  Wales-Eiggs  Planta- 
tions v.  Pumpnrey,  217  S.  W.  783,  —  Ark.  Sup.  — . 

Where  a  real  estate  agent  fixed  the  selling  price  of  land,  and 
gave  it  to  a  sub-agent  to  be  given  to  possible  purchasers,  it  was 
within  the  scope  of  the  sub-agent's  employment  to  represent  that 
this  was  the  lowest  price  the  owner  would  take.  Estes  v.  Crosby, 
177  N.  W.  512,  -  -  Wis.  Sup.  — .  Where  a  broker's  contract  is 
silent  as  to  the  terms  of  payment,  the  broker's  authority  is  im- 
pliedly  limited  to  the  making  of  a  cash  sale.  Shuck  v.  Conway, 
179  N.  W.  434,  —  Iowa  Sup.  — . 


CHAPTER  III. 

SECTION.  SECTION. 

19.  Nudum    pactum,    a    contract  constituent   of    an    enforce- 

to  be  effective  must  be  based  able  contract. 

upon  a  consideration.  22.     Revocation        of        authority 

20.  Unilateral  contracts.  granted  to  the  agent. 

21.  Consideration  as  an  essential  23.     Repudiation  or   rescission   of 

the  contract. 

Sec.  19.    Nudum  pactum,  a  contract  to  be  effective  must  be 
based  upon  a  consideration. 

A  contract  by  a  person  having  no  interest  in  the  transaction, 
to  pay  a  commission  if  a  sale  is  effected,  is  void,  unless  sup- 
ported by  a  consideration.  Smyth  v.  Mack,  19  N.  Y.  S.  347,  64 
Hun,  639.  Release  of  an  existing  indebtedness  for  commissions, 
due  in  a  mutual  contract  for  the  sale  of  land,  is  a  new  contract 
and  must  be  based  on  a  consideration,  and  an  oral  statement 
by  the  agent  that  he  claims  no  commissions  is  not  therefore 
sufficient  to  show  a  release.  Metcalfe  v.  Kent,  104  Iowa,  487,' 
73  N.  W.  1037;  McComb  v.  Von  Ellert,  27  N.  Y.  S.  372,  7  Misc. 
R.  59.  See  also  Sec.  788. 

"Where  A,  without  any  existing  employment,  exhibits  a  house 
to  one  who  rents  from  the  owner,  a  promise  by  the  owner,  made 
thereafter,  to  pay  A  for  his  services,  is  without  consideration. 
Sharp  v.  Hooper  (N.  J.  Sup.  '06),  64  A.  989 ;  Bagnole  v.  Madden, 
69  A.  967,  76  N.  J.  L.  255;  Wolverton  v.  Turtle,  51  Ore.  501, 
94  P.  961. 

Where  a  broker  was  employed  to  effect  an  exchange  of  prop- 
erties and  has  earned  his  commissions  by  obtaining  a  valid  agree- 
ment therefor,  an  agreement  subsequently  made  to  claim  no 
commissions,  unless  deeds  pass  or  his  client's  title  proves  un- 
marketable, is  without  consideration.  Moskowitz  v.  Hornberger, 
46  N.  Y.  S.  462,  20  Misc.  Rep.  558 ;  Rohkohl  v.  Sussman,  113  N. 
Y.  S.  586,  61  Misc.  246.  See  also  Sec.  788. 

37 


38  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

A  broker  is  not  entitled  to  commissions  on  an  exchange  of 
properties,  where  he  did  nothing,  and  does  not  show  that  he 
was  excused  from  rendering  services.  Walton  v.  McMorrow,  39 
N.  Y.  App.  Div.  667,  57  N.  Y.  S.  691.  The  mere  insertion  in 
an  instrument  that  it  is  irrevocable,  is  without  consideration 
and  inoperative.  Walker  v.  Denison,  86  111.  162.  An  agree- 
ment by  an  agent,  through  misstatement,  to  reduce  his  com- 
missions was  held  to  be  without  consideration.  Dayton  v.  Am. 
Steel- Range  Co.,  73  N.  Y.  S.  316,  79  N.  Y.  S.  1130,  76  App. 
Div.  454,  36  Misc.  R.  223.  An  agreement  to  pay  an  agent  two 
and  one-half  per  cent,  on  sales  made  by  the  vendor  is  without 
consideration.  Wright  v.  Fulling,  93  N.  Y.  S.  228,  104  App. 
Div.  49.  Compare  Sec.  42. 

A  promise  made  under  an  erroneous  belief  to  pay  a  com- 
mission is  without  consideration,  no  service  having  been  ren- 
dered, and  the  broker  is  not  entitled  to  recover.  Bellesheim  v. 
Palm,  66  N.  Y.  S.  273,  54  App.  Div.  77. 

Where  defendant  agreed  to  pay  plaintiff  the  reasonable  value 
of  his  services,  and  there  was  no  agreement  that  such  value 
should  be  fixed  by  defendant,  at  least  until  after  the  services 
had  been  performed,  such  a  stipulation  was  unilateral,  with- 
out consideration,  and  not  enforceable.  Walker  Mfg.  Co.  v. 
Knox,  136  Fed.  334,  69  C.  C.  A.  160. 

Where  an  owner  of  land  revoked  an  agent's  authority  to 
sell,  and  told  the  agent  that  he  would  be  taken  care  of  as  if 
he  had  made  the  sale,  and  the  owner  then  made  a  sale  through 
his  own  efforts,  the  promise  to  the  broker  was  without  consid- 
eration. Cronin  v.  American  Securities  Co.  (Ala.  Sup.  '09), 
50  S.  915. 

Plaintiff,  a  broker,  applied  for  the  lowest  price  at  which  the 
owner  of  certain  lots  would  sell  the  same,  to  which  the  owner's 
son,  with  authority,  wrote  that  the  price  was  $650,  and  that  if 
plaintiff  closed  the  deal  on  the  lots  at  this  figure  within  the  next 
thirty  days  the  price  would  stand  to  plaintiff,  otherwise  the  lots 
were  off  the  market.  Plaintiff  made  no  reply.  Held,  that  such 
letter  did  not  give  plaintiff  an  exclusive  right  to  sell  the  lots  for 
the  thirty  days,  but  was  a  mere  nudum  pactum  option  to  sell  the 
lots  for  that  price  within  thirty  days.  Stinemeyer  v.  Chase,  111 
P.  57,  48  Colo.  502. 


THE  CONTRACT  OF  AGENCY.  39 

Where  plaintiff  and  a  corporation  were  jointly  employed  to 
bring  about  a  sale  of  real  estate,  and  the  corporation  contracted 
for  a  specified  sum  as  compensation,  which  was  paid,  plaintiff 
could  not  recover  of  the  vendor  a  certain  commission,  on  the 
ground  that  it  was  the  usual  and  customary  commission.  Jen- 
kins v.  Mohoney,  127  IS.  Y.  Supp.  573,  142  App.  Div.  653. 
Contra.  On  the  other  hand,  entitled  to  commission,  whether 
agreement  for  compensation  was  made  before  or  after  the  con- 
tract for  exchange.  Sure  v.  Neuman,  133  N.  Y.  Sup.  776,  67 
Misc.  Eep.  605. 

A  property  owner's  agreement  to  pay  real  estate  brokers  in 
charge  of  his  property  as  general  agents  extra  compensation  for 
leasing  the  same  is  void  when  made  without  consideration.  Pope 
v.  Rodena  Realty  Co.,  144  K.  Y.  Sup.  1070. 

Notes  given  by  a  borrower  to  a  loan  company's  agent  to  the 
amount  of  his  commission,  held  without  consideration,  and  not  en- 
forceable where,  because  of  defect  in  title  the  loan  was  not  made. 
Hibbard  v.  Ford,  155  P.  510,  —  Okl.  Sup.  — . 

Where  the  vendor  forfeited  a  land  contract  for  failure  to 
make  payments,  held,  that  the  consideration  of  the  note  given 
to  the  broker  failed.  Lewis  v.  Rayburn,  190  111.  App.  539. 

The  promise  of  an  owner  of  land  to  give  a  broker  additional 
compensation,  held  without  consideration.  Phillips's  Ex.  v.  Rudy, 
143  S.  W.  397,  146  Ky.  780. 

Nothing  remaining  to  be  done  except  the  formal  execution  of 
a  contract  for  the  sale  of  land,  held  that  there  was  no  considera- 
tion for  a  new  agreement  by  the  owner  with  the  broker  for  in- 
creased compensation  if  he  would  close  the  contract  and  receive 
the  first  payment.  Mayer  v.  Penfield,  134  N.  Y.  Sup.  762,  150 
App.  66. 

A  contract  by  which  T.  was  to  examine  and  purchase  timber 
land  for  M  and  have  interest  and  profits,  held,  executed  with 
each  parcel  when  title  vested,  so  that  it  could  not  be  modified 
without  consideration.  Titus  v.  Whiteside,  228  F.  965. 

Any  attempted  alteration,  after  a  sale,  of  a  contract  between 
plaintiffs  and  defendant  fixing  the  proportion  in  which  they 
should  divide  the  commission  for  a  sale,  if  without  consideration, 
would  be  ineffectual.  Smith  v.  Goldsborough,  167  N.  Y.  Sup. 
297,  179  App.  Div.  769. 


40  AMEEICAN   LAW   REAL   ESTATE   AGENCY. 

Provision  of  real  estate  'exchange  contract  requiring  one  of 
the  parties  to  pay  a  commission  to  the  other  party's  broker,  to 
whom  first  party  was  not  indebted,  is  void  for  failure  of  consid- 
eration. Lister  v.  Sakeminski,  172  N".  W.  397,  —  Mich  Sup.  — . 

Eeal  estate  exchange  contract  provided,  "The  parties  to  this 
agreement  hereby  acknowledge  that  W.  and  F.  (brokers  of  the 
respective  parties)  brought  about  this  sale,  and  agree  to  pay  the 
regular  broker's  commission  therefor  upon  their  respective  prop- 
erties", construed,  in  view  of  Comp.  Laws  1915,  sec.  11981,  was 
merely  an  agreement  by  each  party  to  pay  his  own  broker,  and 
did  not  entitle  a  broker,  under  sec.  12353,  to  recover  a  commis- 
sion from  the  party  by  whom  he  was  not  employed,  and  whom  he 
did  not  represent  in  the  transaction.  Id. 

A  broker  who  was  the  means  of  finding  a  purchaser  and  bring- 
ing about  negotiations  leading  up  to  a  sale  of  land  was  entitled 
to  recover  compensation,  although  he  told  the  principal  that  he 
would  not  claim  his  commission,  such  statement  having  been  made 
after  the  sale  had  in  effect  been  closed  and  the  principal  not 
having  been  prejudiced  or  led  to  act  differently  than  he  would 
otherwise  have  acted  by  reason  of  such  statement.  Hodges  v. 
Ramsey,  216  S.  W.  568,  —  Mo.  App.  — . 

Sec.  20.    Unilateral  contracts. 

Although  an  agreement  signed  by  a  real  estate  owner  to  pay 
an  agent  a  certain  commission  in  the  event  that  the  owner  shall 
make  a  sale  is  a  unilateral  contract,  and  invalid  on  its  face,  yet 
where  the  agent  goes  to  the  expense  of  advertising  and  endeav- 
oring to  sell,  this  is  a  sufficient  partial  performance  to  render  it 
enforceable.  Lapham  v.  Flint,  86  Minn.  376,  90  N.  W.  780; 
Schoenman  v.  Whitt,  136  Wis.  332,  117  K  W.  851;  Hanlon  v. 
Dunne,  189  111.  App.  123. 

Where  defendant  was  authorized  by  the  owner  of  land  to 
sell  it  and  agreed  to  share  the  commissions  with  the  plaintiff,  in 
case  the  latter  found  a  purchaser,  the  contract  was  unilateral, 
and  binding  on  neither  party  until  the  plaintiff  found  a  pur- 
chaser. Wefel  v.  Stillman,  151  Ala.  249,  44  S.  203.  See  also 
Sec.  397. 

A  contract  by  the  owner  to  pay  another  a  commission  on  a 
sale  of  property,  whether  effected  by  the  owner  or  agent,  is  a 


THE  CONTRACT  OP  AGENCY.  41 

unilateral  contract,  and  where  the  owner  unaided  in  any  way 
by  the  agent,  effects  a  sale,  the  agent  can  not  recover  commis- 
sions ;  but  if  the  agent  effects  the  sale  his  commissions  are  re- 
coverable. Taylor  v.  Barbour,  90  Miss.  885,  44  S.  988;  Hum- 
phries &  J.  v.  Smith,  5  Ga.  App.  340,  63  S.  E.  248. 

Where  a  contract  employing  a  broker  to  sell  coal  lands  pro- 
vided for  the  payment  of  a  commission  on  the  broker  effecting  a 
sale  within  six  months  from  August  19,  1904,  and  further  pro- 
vided that  if,  during  the  six  months,  the  broker  named  to  the 
owner  a  probable  purchaser,  and  the  property  came  under  the 
control  of  the  person  so  named,  the  broker  should  be  entitled  to 
a  commission  if  a  sale  or  lease  was  made  within  a  year  from 
Feb.  10,  1905,  the  agreement  was  neither  unilateral  nor  abnormal. 
Langdon  v.  Taylor,  180  F.  385,  103  C.  C.  A.  531. 

Where  a  property  owner  states  to  a  real  estate  agent  he  will 
purchase  at  a  specified  price  property  held  for  sale  by  the  latter, 
if  the  latter  will  procure  a  sale  of  the  former's  property,  there 
is  an  offer,  in  the  nature  of  a  continuing  offer  on  such  property 
on  the  owner's  part,  and,  if  not  previously  withdrawn,  the  agent 
furnishes  the  consideration  by  rendering  services  resulting  in  the 
sale  of  the  owner's  property,  there  comes  into  existence  a  unilat- 
eral contract  executed  on  the  agent's  part,  and  binding  the  owner 
to  purchase  the  property  held  by  the  agent.  Carroll  v.  Goldstein, 
211  111.  App.  315. 

Sec.  21.    Consideration  as  an  essential  constituent  of  an  en- 
forceable contract. 

Where  one  employs  another  as  agent  to  sell  land,  the  con- 
tract is  based  upon  a  sufficient  consideration.  Roivan  v.  Hull, 
55  W.  Va.  335,  47  S.  E.  92;  Gilmore  v.  Samuels  (Ky.  Ct.  App. 
'09),  123  S.  W.  271.  The  lower  price  for  which  defendants 
secured  the  real  estate  is  a  sufficient  consideration  to  support 
an  agreement  to  pay  plaintiffs  a  certain  sum  as  commissions, 
in  order  to  obtain  the  property  at  the  price  for  which  the  owner 
was  willing  to  sell  it,  provided  he  was  relieved  from  the  pay- 
ment of  commissions,  the  owner  not  being  willing  to  sell  at 
that  price  unless  he  was  so  relieved.  Deitsch  v.  Feder,  86  N. 
Y.  S.  802. 

An  agreement  made  by  a  broker  after  the  sale  to  wait  for 


42  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

the  payment  of  his  commissions  until  the  title  passed,  was  un- 
supported by  a  consideration.  Hough  v.  Baldwin,  99  N.  Y.  S. 
545,  50  Misc.  R.  546;  Shields  v.  Sterret  (N.  J.  Sup.  '09),  71 
A.  1129. 

In  States  requiring  a  written  contract  with  a  broker  to  sell 
real  estate,  a  subsequent  express  promise  to  pay  the  broker  a 
commission  is  without  consideration  to  support  an  oral  employ- 
ment. Stout  v.  Humphrey,  69  N.  J.  Law  436.  55  A.  281 ;  Bag- 
noli  v.  Madden,  76  N.  J.  L.  255,  69  A.  967. 

In  another  case  in  the  same  State,  it  was  held  that  where 
the  agent  advertised  the  property  for  sale  at  auction  and  se- 
cured the  services  of  an  auctioneer,  and  the  owner  sold  the 
property  privately  and  promised  to  pay  the  agent  for  his  ser- 
vices, the  promise  was  based  upon  a  sufficient  consideration. 
Griffith  v.  Daly,  56  N.  J.  Law  466,  29  A.  169. 

An  agent  desisting  from  efforts  to  sell,  upon  the  owner's 
promise  to  pay  commissions,  is  a  sufficient  consideration  to 
support  a  verdict  for  half  the  commissions.  Ware  v.  Kerwin, 
48  N.  Y.  S.  884,  24  App.  Div.  198.  Where  the  quantity  of  land 
fell  short  of  what  the  owner  supposed  he  possessed,  and  the 
broker  agreed  to  a  diminution  of  compensation,  the  agreement 
was  upon  a  sufficient  consideration.  Brunson  v.  Blair,  44  Tex. 
Civ.  App.  43,  97  S.  W.  337.  A  broker  who  introduced  a 
prospective  buyer  to  the  owner  prior  to  his  employment  as  agent, 
and  the  owner  made  the  sale  himself,  was  held  not  entitled  to  a 
commission.  Bassford  v.  West,  124  Mo.  App.  248,  101  S.  W.  610 ; 
see,  also,  Sections  68  and  450.  A  release  of  an  existing  debt 
for  commissions  is  a  new  contract  and  must  be  based  on  a  con- 
sideration. Metcalfe  v.  Kent,  73  N.  W.  1037,  104  Iowa,  487; 
Frederick  Zittal  &  Sons  v.  Schwartz,  173  N.  Y.  Sup.  383. 

Where  a  broker,  requested  by  the  owner  of  property  to  find  a 
purchaser  at  a  certain  price,  showed  the  property  to  the  defend- 
ant, who  told  him  he  could  do  better  by  buying  it  himself  from 
the  owner,  and  if  he  bought  would  pay  the  broker  a  commission, 
the  promise  was  a  sufficient  consideration.  Abraham  v.  Goldberg, 
25  N.  Y.  S.  1113,  6  Misc.  B.  43. 

A  contract  for  such  time  as  may  be  mutually  agreeable,  did 
not  bind  plaintiff  except  for  what  had  been  actually  done,  and 
a  subsequent  agreement  with  defendant  to  pay  a  different  rate 


THE  CONTEACT  OF  AGENCY.  43 

for  effecting  the  sale  of  a  particular  property  was  upon  a  valid 

consideration.  Forbes  v.  Bushnell,  47  Minn.  402,  50  N.  W.  368. 
In  an  action  by  a  broker  to  recover  commissions  for  a  sale  of 
real  estate  to  the  United  States,  the  only  service  shown  by 
plaintiff  that  he  intensified  public  opinion  to  establish  a  military 
post  in  the  neighborhood,  was  held  to  be  an  insufficient  con- 
sideration to  support  a  verdict  for  the  plaintiff.  Com'l  Nat.  Bk. 
v.  Hawkins,  35  111.  App.  463. 

Letters  of  plaintiffs  and  defendant  held  insufficient  to  com- 
ply with  the  statute  of  frauds  in  the  making  of  a  real  estate 
brokerage  contract,  there  being  no  consideration  named  from 
plaintiffs  to  the  defendant.  Lueddemann  v.  Rudolf,  155  P.  172, 
79  Or.  249 ;  den.  re.  154  P.  116,  79  Or.  249. 

Where  several  brokers  were  concerned  in  the  sale  of  lands,  and 
the  terms  of  the  sale  were  agreed  on,  but  the  parties  refused  to 
complete  the  sale  until  there  was  an  agreement  by  the  brokers 
for  division  of  the  commission,  an  agreement  by  one  of  them  to 
accept  a  certain  sum,  amounting  practically  to  a  surrender  of 
his  right  to  make  the  sale  for  himself  to  that  purchaser,  or  any 
other,  and  to  further  the  sale  by  another  broker,  was  supported 
by  sufficient  consideration,  and  he  was  entitled  to  recover  thereon 
from  the  broker  making  the  sale.  Morrison  v.  Franck,  117  P. 
308,  59  Or.  429. 

Where  a  real  estate  agent' who  negotiated  a  sale  on  instalments 
agreed  to  rescind  the  contract,  whereby  the  purchaser  should  re- 
ceive back  the  money  already  paid  in,  and  the  purchaser  there- 
after made  no  further  payment,  although  the  contract  provided 
for  forfeiture  on  default,  there  was  a  sufficient  consideration  to 
render  the  agent  liable  for  the  payment  of  the  money  already 
paid.  E.  F.  Rawson  &  Co.  v.  McEinney,  157  S.  W.  271,  —  Tex. 
Civ.  App.  — . 

Owner's  promise  in  his  written  offer  to  pay  a  commission  for 
the  sale  or  exchange  of  realty  was  designed  to  procure  a  broker's 
services,  such  services  to  be  rendered  are  taken  as  the  considera- 
tion for  the  promise.  Oregon  Home  Builders  v.  Crowley,  171  P. 
214,  87  Or.  517;  den.  re.  170  P.  718,  87  Or.  517. 

Where  a  sale  of  land  was  not  entered  into  according  to  broker- 
age contract,  amount  of  compensation  due  broker  being  ques- 
tioned, an  agreement  by  the  broker  to  take  commission  pro  rata 


44  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

out  of  payments  to  be  made  on  purchase  price,  was  not  without 
consideration,  both  parties  surrendering  claims.  Colvin  v.  Post 
Mtge.  &  Loan  Co.,  122  N.  E.  454,  225  N.  Y.  510,  rev.  judg.  159 
N.  Y.  Sup.  361 ;  mot.  to  am.  remit,  den.  123  N.  E.  860. 

A  broker  may,  if  he  chooses,  agree  that  if  the  sale  of  land 
fails  because  of  the  seller's  fault,  he  shall  be  entitled  to  nothing, 
but  an  agreement  should  not  be  so  construed  unless  such  a  result 
is  clearly  intended.  Id. 

The  consideration  which  is  necessary  to  make  a  power  of  a 
broker  to  sell  land  irrevocable  must  be  independent  of  the  com- 
pensation to  be  paid  for  the  services  to  be  performed.  Williamson 
R.  E.  Co.  v.  Sasser,  103  S.  E.  73,  —  N.  C.  Sup.  — . 

Sec.  22.    Revocation  of  authority  granted  to  the  agent. 

If  a  broker  has  had  a  reasonable  time  to  find  a  purchaser,  the 
principal  may,  in  good  faith,  revoke  the  employment  without 
incurring  liability.  Blumenthal  v.  Goodall,  89  Cal.  251,  26 
P.  906;  Collier  v.  Johnson,  23  Ky.  L.  R.  2453,  67  S.  W.  830; 
Cadigan  v.  Crabtree,  186  Mass.  7,  70  N.  E.  1033,  66  L.  R.  A.  982 ; 
Jayne  v.  Drake  (Miss.  Sup.  '06),  41  S.  372;  Kolb  v.  Bennett,  74 
Miss.  567;  Turner  v.  Snyder,  132  Mo.  App.  320,  111  S.  W.  858; 
Loving  v.  Hesperian  C.  Co.,  176  Mo.  330,  75  S.  W.  1095 ;  Miller 
v.  Wehrman  (Neb.  Sup.  '08),  115  N.  W.  1078;  Slater  v.  Holt, 
10  N.  Y.  St.  257;  AUott  v.  Hunt,  129  N.  C.  403,  40  S.  E.  119; 
Simpson  v.  Carson,  11  Oregon,  361,  8  P.  325 ;  Newton  v.  Conness 
(Tex.  Civ.  App.  '08),  106  S.  W.  892;  Evans  v.  Gay,  38  Tex. 
Civ.  App.  442,  74  S.  W.  575;  Knox  v.  Parker,  2  Wash.  34,  25  P. 
909;  Jlowm  v.  Hull,  55  W.  Va.  335,  47  S.  E.  92;  Cronin  v. 
American  Securities  Co.  (Ala.  Sup.  '09),  50  S.  915;  Friedenwald 
v.  Welsh,  140  N.  W.  564,  174  Mich.  399 ;  Martin  v.  Jeffries,  172 
S.  W.  148,  —  Tex.  Civ.  App.  — ;  W  oiler  v.  Chambers,  128  111. 
App.  624;  West  v.  Kirby  Lumber  Co.,  193  S.  W.  172,  --  Tex. 
Civ.  App.  — ;  Harris  v.  Morton  &  Co.,  107  K  Y.  Sup.  80,  101 
Miss.  Rep.  398;  ScUfflin  v.  Smith,  203  S.  W.  849,  —  Ark.  Sup. 
— ;  Armstrong  v.  Lounslerry,  Simmons  &  Co.,  173  N.  W.  890, 
—  Iowa  Sup.  — ;  Roth  v.  Thompson,  180  P.  656,  —  Cal.  App.  — ; 
U.  8.  Farm  Loan  Co.  v.  Darter,  183  P.  696,  —  Cal.  App.  — ; 
Nichols  &  Jackson  v.  Carson,  220  S.  W.  297,  —  Tex.  Civ.  App. 


THE  CONTEACT  OF  AGENCY.  45 

— ;  Beck  v.  Howard,  178  N.  W.  579,  —  S.  D.  Sup.  — ;  Tulman 
v.  Gibson,  192  P.  1033,  —  Cal.  App.  — . 

A  principal  revoking  the  agency  must  act  in  good  faith,  and 
not  for  the  purpose  of  evading  liability  for  the  broker's  services. 
Bailey  v.  Smith,  103  Ala.  641,  15  S.  900;  Uphof  v.  Ulrich,  2  111. 
App.  399;  Beeler  v.  Cresswell,  3  Md.  196;  Cadigan  v.  Crabtree, 
186  Mass.  7,  70  N.  E.  1033,  66  L.  E.  A.  982;  Alden  v.  Earle, 
56  N.  Y.  Super.  Court,  366,  4  N.  Y.  S.  548;  Neal  v.  Lehman,  11 
Tex.  Civ.  App.  461,  34  S.  W.  153;  Peach  River  Lumber  Co.  v. 
Montgomery  (Tex.  Civ.  App.  '08),  115  S.  W.  87;  Lanx  v.  Hoge, 

123  P.  949,  45  Mont.  445;  Bodine  v.  Penn  Lumber  Co.,  194  S. 
W.  226,  —  Ark.  Sup.  — ;  Bradley  v.  Blandin,  100  A.  920,  91  Vt. 
472;  Calhoun  v.  Dunnson  &  Gay,  97  S.  E.  885,  —  Ga.  App.  — ; 
J.  G.  Wright  &  Son  v.  Shepard,  100  S.  E.  587,  178  N.  C.  656 ; 
Williamson  R.  E.  Co.  v.  Sasser,  103  S.  E.  73,  —  1ST.  C.  Sup.  — . 
If  the  broker  has  found  a  responsible  purchaser  before  the  re- 
ceipt of  the  notice  of  revocation,  the  principal  will  be  liable  on 
his  contract  for  commissions.    Tilden  v.  Smith  (S.  D.  Sup.  '10), 

124  N.  W.  841;  Montgomery  v.  Ainslie  (Tex.  C.  A.  '09),  122  S. 
W.  307;  Cadigan  v.  Crabtree,  186  Mass.  7,  70  N".  E.  1033,  66 
L.  E.  A.  982;  Reishus-Remel  Ld.  Co.  v.  Benner,  91  Minn.  401, 
98  N".  W.   186;  Canadian  Imp.  Co.  v.   Cooper,  161  Fed.   279; 
Handley  v.  Shaffer,  59  S.  286,  177  Ala.   636;  Weisells-Gerhart 
R.  E.  Co.  v.  Epstein,  137  S.  W.  326,  157  Mo.  App.  101 ;  Maddox 
v.  Harding,  135  K  W.  1019,  91  Neb.  292;  Roach  River  Lumber 
Co.  v.  Montgomery,  115  S.  W.  87,  51  Tex.  Civ.  App.  487;  Mer- 
cantile Trust  Co.  v.  Lamar,  128  S.  W.  20,  148  Mo.  App.  353; 
Merkeley  v.  Fislc,  178  P.  945,  —  Cal.  Sup.  — ;  Edwards  v.  Dana, 
178  P.  407,  —  Kan.  Sup.  — ;  Beck  v.  Howard,  172  N.  W.  577, 
—  S.  D.  Sup.  — ;  Jenkins  v.  Kay,  224  S.  W.  1028,  —  Mo.  App. 
— .    Power  to  revoke  must  be  distinguished  from  the  right  to  re- 
voke.   Mechem  on  Ag.,  Sec.  209;  Lord  v.  Wapato  Inv.  Co.,  142 
P.  1172,  81  Wash.  561;  judg.  aff'd  on  re.  152  P.  327,  84  Wash. 
696. 

Where  the  only  instructions  given  to  an  agent  are  that  he 
shall  visit  a  certain  addition,  sell  some  lots  and  pay  the  sum 
demanded  as  part  of  the  price,  without  any  limitation  upon  his 
discretion,  the  principal  can  not  rescind  any  contract  made  by 
the  agent  for  the  purchase  of  lots,  or  recover  any  sum  paid  on 
account  thereof,  unless  a  failure  of  consideration,  a  defect  in 


46  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

the  title,  or  other  like  circumstance  be  made  to  appear.  Boulder 
Inv.  Co.  v.  Fries,  31  P.  174;  2  Colo.  App.  373.  An  agency 
coupled  with  an  interest  is,  within  the  time  stated,  irrevocable. 
Bird  v.  Phillips,  115  Iowa,  703,  87  N.  W.  414;  Stamets  v.  Denni- 
son,  193  Pa.  St.  548,  44  A.  575.  The  death  of  the  principal  or  a 
partial  destruction  of  the  subject-matter  works  a  revocation.  Cox 
v.  Bowling,  54  Mo.  App.  289.  Also  the  principal's  disposition 
of  his  interest  in  the  subject-matter  of  the  agency.  Frazier  v. 
Cox  (Ky.  Ct.  App.  '10),  125  S.  W.  148. 

A  contract  of  agency  can  not,  but  in  good  faith,  be  revoked  be- 
/  fore  the  expiration  of  the  time  allotted  and  the  principal  escape 
I  liability  to  the  broker.  Blumenthal  v.  Goodall,  89  Cal.  251,  26 
I  P.  906;  Glover  v.  Henderson,  120  Mo.  367,  25  S.  W.  175;  Stam- 
ets v.  Dennison,  193  Pa.  St.  548;  Randle  v.  Bloomfield,  142  S. 
I  W.  677,  146  Ky.  421 ;  Myers  v.  Batcheller,  163  N.  Y.  Sup.  688 ; 
Sparks  v.  Grassi,  165  N.  Y.  Sup.  519;  compare  Harrison  v. 
Angerson,  115  111.  App.  226.  A  broker  is  not  entitled  to  com- 
missions on  a  sale  by  the  owner  of  real  estate  made  in  good  faith 
after  the  revocation  of  his  authority  to  one  with  whom  the 
broker  negotiated  before  the  time  expired.  Zeiner  v.  An'tisell, 
75  Cal.  509,  17  P.  642;  Farrar  v.  Brodt,  35  111.  App.  617; 
Learned  v.  McCoy,  4  Ind.  App.  238,  30  N.  E.  717;  Fultz  v. 
Winer,  34  Kan.  576,  9  P.  316 ;  Aniisdell  v.  Canfield,  119  Mich. 
229,  77  N.  W.  944 ;  LaForce  v.  Wash.  Uni.,  106  Mo.  App.  517,  81 
S.  W.  209 ;  Page  v.  Griffith,  71  Mo.  App.  524 ;  Gardner  v.  Pierce, 
116  N.  Y.  S.  155;  Beauchamp  v.  Higgins,  20  Mo.  App.  514; 
Sattertwhaite  v.  Vreeland,  48  How.  Pr.  (N.  Y.)  508,  3  Hun, 
152;  Neal  v.  Lehman,  11  Tex.  Civ.  App.  461,  34  S.  W.  153; 
Cardy  v.  Ruth,  100  N.  Y.  S.  1043,  115  App.  Div.  568, 103  N.  Y.  S. 
1121;  Newton  v.  Conness  (Tex.  Civ.  App.  '08),  106  S.  W.  892; 
Siegel  v.  Eosenzweig,  114  N.  Y.  S.  179;  compare  Griswold  v. 
Pierce,  86  111.  App.  406,  et  al,  Sec.  557. 

A  contract  of  agency  is  revoked  by  a  notice  of  the  exercise  of 
an  option  to  purchase.  Faraday  Coal  &  Coke  Co.  v.  Owens,  26 
Ky.  L.  R.  243,  80  S.  W.  1171.  A  vendee,  defrauded  by  his 
agent,  may  rescind  the  contract  of  sale  and  reclaim  the  money 
paid.  Kennedy  v.  McKay,  43  N.  J.  L.  288.  Where  defendant 
authorized  the  plaintiff  to  sell  his  farm  at  $50  an  acre,  a  letter 
of  plaintiff  desiring  a  modification  so  as  to  sell  at  $48  or  $49 


THE  CONTRACT  OP  AGENCY.  47 

an  acre  did  not  operate  to  revoke  the  plaintiffs  first  authority. 
Fuller  v.  Brady,  22  111.  App.  174.  Acts  of  the  agent  after  a 
revocatoin  bind  the  principal  as  to  third  parties  without  notice. 
Murphy  v.  OttenJieimer,  84  111.  39;  Beard  v.  Kirk,  11  N.  H.  397; 
Hancock  v.  Byrne,  5  Dana  (Ky.),  514;  Lamothe  v.  St.  Louis, 
etc.,  R.  Co.,  17  Mo.  204.  After  the  revocation  of  written  author- 
ity, his  acts,  if  the  writing  be  left  in  the  hands  of  the  agent,  may 
bind  the  principal  by  the  agent's  exhibiting  the  instrument  as 
his  apparent  authority  to  parties  without  notice.  Beard  v.  Kirk, 
11  N.  H.  397;  Story  on  Ag.,  Sec.  470. 

Where  a  real  estate  broker,  employed  to  procure  a  purchaser 
for  a  farm,  procured  a  buyer  who  agreed  with  the  owner  on  the 
terms  of  sale,  and  the  buyer  was  given  to  a  fixed  date  to  pur- 
chase, unless  the  owner  sold  in  the  meantime,  before  the  time 
fixed  the  buyer  told  the  owner  that  he  would  not  buy  without 
also  procuring  adjacent  land,  which  he  could  not  do,  the  owner 
then  stated  to  the  buyer  that  the  matter  was  settled  between 
them,  and  later,  on  the  same  day,  the  buyer  told  the  owner  that 
he  would  take  the  farm  on  the  terms  agreed,  it  was  held  that 
the  broker  had  earned  his  commission,  though  no  sale  was  made, 
the  owner's  statement  to  the  buyer  not  constituting  a  revocation 
of  the  broker's  authority  to  procure  a  buyer.  Sallee  v.  McMur- 
ray,  113  Mo.  App.  253,  88  S.  W.  157 ;  compare  Bailey  v.  More- 
head,  122  Mo.  App.  268,  99  S.  W.  973. 

The  revocation  of  a  contract  with  an  agent  to  take  charge  of 
property,  rent  the  same  and  collect  the  rents,  before  any  rents 
;were  collected,  made  the  principal  liable  to  compensate  the 
agent  for  the  services  rendered.  New  Kanawha  C.  &  M.  Co.  v. 
Wright,  163  Ind.  529,  72  N.  E.  550.  Defendant  agreed  to  pay 
[plaintiff  one  dollar  an  acre  for  finding  a  purchaser  for  a  certain 
farm  at  $37.50  per  acre;  after  introducing  a  purchaser,  but 
before  sale,  defendant  wrote  the  plaintiff  that  he  had  no  hopes 
of  making  a  sale  to  such  prospective  purchaser,  and  that  the 
owners  of  the  land  required  $35  net  per  acre,  which  price  had 
been  quoted  to  the  proposed  purchaser,  that  if  plaintiff  still 
desired  to  assist,  to  make  his  commissons  from  the  purchase 
price  over  $35  per  acre,  he  was  at  liberty  to  proceed,  otherwise 
the  arrangement  would  be  revoked;  it  was  held  that  such  letter 
did  not  constitute  a  revocation  of  plaintiff's  authority  so  as  to 


48  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

deprive  him  of  the  right  to  the  contract  commission,  on  the  sub- 
sequent consummation  of  a  sale  to  such  purchaser.  Provident 
Trust  Co.  v.  Darraugh,  168  Ind.  29,  78  N.  E.  1030. 

Where  a  broker  was  employed  to  sell  land  for  $75,000  at  a 
commission  of  $2,000,  and  after  he  had  introduced  a  purchaser 
his  authority  was  revoked  and  the  land  was  sold  by  his  employer 
for  $65,000,  the  broker  was  held  entitled  to  recover  only  his 
contract  commissions,  with  interest  thereon,  and  not  the  cus- 
tomary commissions,  or  the  reasonable  value  of  his  services. 
McGovern  v.  Bennett,  146  Mich.  558,  109  N,  W.  1055,  13  D.  L. 
N.  853 ;  see,  also,  Sec.  572.  The  fact  that  the  broker,  not  having 
an  exclusive  agency,  has  entered  into  a  contract  of  sale  on  dif- 
ferent terms,  of  which  the  principal  has  no  notice,  does  not 
affect  the  principal's  right  to  revoke  the  agency  through  a 
previous  sale  to  another.  Weisels-Gerhart  R.  E.  Co.  v.  Wain- 
wright,  127  Mo.  App.  514,  105  S.  W.  1096. 

An  exclusive  agency,  for  a  valuable  consideration,  given  for  a 
period  of  seven  days,  was  revoked  by  notice  within  the  time, 
so  that  a  purchaser  who  bought  from  the  agent  after  such 
revocation,  though  within  the  seven  days,  had  no  enforceable 
contract  of  sale,  the  agent,  however,  might  have  an  action 
against  his  principal  for  a  breach  of  the  contract.  Norton  v. 
Sjolseth,  43  Wash.  327,  86  P.  573;  compare  Cadigan  v.  Crab- 
tree,  192  Mass.  233,  78  N.  E.  412.  In  a  well  considered  case  it 
was  held  that  a  revocation  in  fraud  of  a  broker's  rights  would 
not  amount  to  a  revocation.  Cadigan  v.  Crdbtree,  192  Mass.  233, 
78  N.  E.  412.  This,  however,  conflicts  with  the  doctrine  of  the 
owner's  power  to  revoke.  Mechem  on  Ag.,  Sec.  209. 

Defendant  signed  a  contract  reciting  a  sufficient  consideration 
by  which  he  authorized  plaintiffs,  as  his  agents,  to  sell  a  tract 
of  land  for  a  stated  price,  and  to  execute  a  binding  contract  in 
that  behalf.  Afterward,  defendant  wrote  plaintiffs  that  his  wife 
refused  to  sign  a  deed  for  such  price,  stating  that  they  might 
as  well  take  the  land  off  the  market.  To  this  plaintiff  replied, 
in  effect  assenting,  and  asking  for  defendant's  lowest  price  for 
the  land,  and  stating,  "When  we  hear  from  you  we  will  see  what 
we  can  do."  Held,  that  by  such  letters  the  agency  was  entirely 
abrogated,  leaving  the  matter  at  large  for  new  negotiations  be- 
tween the  parties.  Lacey  v.  Thomas,  164  F.  623. 


THE  CONTRACT  OP  AGENCY.  49 

An  agreement  by  an  owner  of  premises,  upon  a  valuable  con- 
sideration, to  extend  the  time  within  which  the  broker  might 
sell,  to  such  time  as  the  broker  could  get  a  prospective  purchaser 
to  bind  himself  to  buy  can  not  be  cancelled  by  the  owner,  without 
the  broker's  consent,  so  long  as  negotiations  are  going  on  between 
the  broker  and  the  prospective  purchaser  with  a .  prospect  of 
eventual  sale  within  a  reasonable  time.  Luhn  v.  Fordtran  (Tex. 
Civ.  App.  '09),  115  S.  W.  667,  writ  of  error  denied  by  Supreme 
Court.  The  dissolution  of  a  partnership  will  operate  as  a  revoca- 
tion of  the  power  to  sell;  but  a  mere  change  in  the  name  of  the 
firm,  where  the  new  firm  is  composed  of  the  same  members  as 
the  old,  does  not  operate  to  revoke  an  agency,  conferred  upon  it, 
the  identity  remaining  the  same.  Mechem  on  Agency,  Sec.  221. 

Where  a  broker  is  not  employed  for  a  definite  time,  the  \ 
employment  may  be  revoked  at  will;  but  where  he  is  employed 
for  a  definite  time,  the  agency  can  be  revoked  only  in  accordance 
with  some  express  or  implied  condition  of  its  continuance. 
Blumentkal  v.  Bridges  (Ark.  Sup.  '09),  120  S.  W.  974.  Under 
a  contract  of  employment  of  a  broker  for  a  definite  term,  where 
the  principal  has  not  the  right  to  revoke  the  agency  directly,  he 
cannot  do  so  by  selling  the  property  himself.  Blumenthal  v. 
Bridges  (Ark.  Sup.  '09),  120  S.  W.  974.  See  Sec.  490.  See  also 
Sec.  15. 

Where  an  agent  for  the  owner  of  land  employed  a  broker  to 
sell  at  a  stated  price  per  acre,  the  communication  by  the  broker 
of  offers  to  buy  at  a  less  price  did  not  revoke  his  contract  of  em- 
ployment. Martin  v.  Crumb,  111  N.  E.  62,  216  N.  Y.  500,  rev. 
judg.  142  N.  Y.  Sup.  1096,  158  App.  Div.  228;  app.  to  Ct.  App. 
and  rear.  den.  143  N.  Y.  Sup.  1130,  158  App.  Div.  980. 

Landowner,  without  the  broker's  consent,  was  not  entitled  to 
cancel  an  agreement  upon  a  valuable  consideration  extending  the 
time  within  which  the  broker  might  sell,  where  negotiations  were 
going  on  between  the  broker  and  the  prospective  purchaser  with 
a  prospect  of  success  within  a  reasonable  time.  Luhn  v.  Ford- 
tram,  115  S.  W.  667,  53  Tex.  Civ.  App.  148. 

Where  the  owner  of  realty  employed  brokers  to  lease  it  on  cer- 
tain terms,  and  they  secured  a  prospective  lessee  who  submitted 
to  the  owner  a  draft  of  a  lease  differing  materially  from  that 
authorized,  the  owner  acted  within  its  rights  in  terminating  the 


50  AMEBICAN  LAW  REAL   ESTATE  AGENCY. 

employment  of  the  brokers.  Prendergast  v.  Cord  Meyer  Co.,  156 
N.  Y.  Sup.  750. 

A  land  owner  merely  listing  his  property  for  sale  with  a  broker 
does  not  give  the  broker  an  exclusive  agency  to  sell,  and  such 
agency  may  be  revoked  at  any  time.  Haggard  v.  King,  190  P. 
763,  —  Kan.  Sup.  — .  A  broker's  agency  is  not  rendered  irre- 
vocable by  the  fact  that  the  agent's  right  to  sell  is  made  exclu- 
sive. Beck  v.  Howard,  178  N.  W.  579,  —  S.  D.  Sup.  — . 

In  the  absence  of  fraud  defendant,  owner,  had  the  legal  right 
to  discharge  plaintiff,  broker,  without  obligation  to  pay  for  ser- 
vices in  procuring  a  customer,  at  any  time  before  the  customer 
had  finally  and  definitely  accepted  the  terms  of  the  agreement 
of  conveyance  presented  by  defendant  to  them.  Doten  v.  Chase, 
129  1ST.  E.  363,  —  Mass.  Sup.  — 

Notwithstanding  B.  and  C.  Comp.  sec.  797,  as  amended  by 
Acts  1909,  p  69  (L.  0.  L.  sec.  808),  requiring  the  agency  of  a 
broker  to  sell  real  estate  for  a  commission  to  be  in  writing,  au- 
thority to  sell,  except  at  a  price  higher  than  stated  in  the  writ- 
ing, may  be  withdrawn  by  parol.  Peterson  v.  Bogner,  117  P.  805, 
59  Or.  555. 


Sec.  23.    Repudiation  or  rescission  of  the  contract. 

If  a  purchaser  wishes  to  repudiate  a  contract  to  purchase  on 
the  ground  that  his  agent  has  secretly  received  commissions  from 
the  seller,  he  must  act  promptly  and  make  restitution  as  far  as 
possible.  Lightcap  v.  Nicola,  34  Pa.  Super.  Ct.  189.  A  broker  is 
not  entitled  to  commissions  where  the  purchaser  repudiates  an 
informal  contract.  Gilchrist  v.  Clarice,  86  Tenn.  583,  8  S.  W. 
572;  Sloman  v.  Bodwell,  24  Neb.  790,  40  N.  W.  321.  Or  an  un- 
authorized contract.  Myers  &  King  v.  Coleman  (Miss.  '08),  46 
S.  249;  O'Hare  v.  Murray,  128  N.  Y.  Sup.  1009,  144  App.  Div. 
113.  The  same  is  true  where  the  vendor  promptly  repudi- 
ates a  contract  of  sale,  made  subject  to  his  approval,  and 
returns  the  money  paid  to  the  purchaser.  Powell  v.  Binney,  54 
Neb.  690,  74  N.  W.  1073.  Where  an  agent  was  authorized  to 
execute  a  note  and  mortgage  on  land  purchased,  the  principal 
was  precluded  from  repudiating  the  act.  Fouch  v.  Wilson,  59 
Ind.  13. 


THE  CONTRACT  OF  AGENCY.  51 

Where  a  decedent,  prior  to  the  purchase  of  real  estate,  agreed 
to  pay  plaintiff  who  negotiated  the  purchase  one-third  of  the 
profits  to  be  derived  from  a  subsequent  sale  thereof;  no  time 
for  the  sale  was  fixed  and  the  purchaser  having  died  within 
making  sale,  his  personal  representative  repudiated  plaintiff's 
interest  and  refused  to  sell,  though  the  property  had  largely 
increased  in  value;  it  was  held  that  decedent  under  the  con- 
tract was  required  to  make  a  sale  within  a  reasonable  time,  and 
after  repudiation  of  plaintiff's  rights  he  was  entitled  to  recover 
one-third  of  the  value  of  the  land  in  cash,  after  deducting  the 
purchase  price,  taxes  and  interest.  Kauffman  v.  Bailie,  46 
Wash.  248,  89  Pac.  548. 

Where  an  owner  takes  no  steps  to  repudiate  a  contract  made 
by  an  agent,  and  accepts  the  benefits  thereunder,  he  ratifies  the 
contract  and  is  liable  to  the  purchaser  for  a  breach  thereof. 
Ettinger  v.  Wtatherhead,  29  Ohio  Cir.  Ct.  R.  137.  In  order 
to  obtain  the  rescission  of  an  agreement,  where  the  broker  had 
been  guilty  of  constructive  fraud,  the  purchaser  was  required 
to  pay  the  former  the  value  of  his  services.  Hanna  v.  Haynes, 
42  Wash.  284,  84  Pac.  861.  Delay  in  bringing  suit  for  the  re- 
scission of  a  contract  on  the  ground  of  fraud  does  not  defeat 
the  right  to  the  relief  sought,  where  there  has  been  no  change 
in  the  position  of  the  parties  to  render  it  inequitable.  Lightcap 
v.  Nicola,  34  Pa.  Super.  Ct.  189.  Compare  Bassett  v.  Brown, 
105  Mass.  551.  The  repudiation  of  a  contract  by  the  vendee 
bars  recovery  'of  the  installments  of  purchase  money  paid. 
McKinne  v.  Harvie,  38  Minn.  18,  35  N.  W.  668. 

Under  a  contract  placing  lands  in  the  hands  of  an  agent  for 
sale,  and  giving  him  also  the  option  to  purchase,  and  binding  the 
principal  not  to  himself  sell  for  less  than  a  certain  price,  a  sale 
by  the  principal  for  less  than  the  agreed  price,  held,  a  breach 
both  of  the  agency  and  the  option  feature  of  the  contract.  Sixtti 
v.  Ontonagon  Valley  Land  Co.,  147  N".  W.  1042,  157  Wis.  293. 

Where  the  principal,  as  soon  as  he  learned  of  the  broker's  en- 
tering into  a  contract  in  excess  of  his  authority  objected,  he  did 
not  waive  his  rights.  Anderson  v.  Rowley  &  Howard,  155  N.  W. 
261,  175  Iowa,  4. 

Where  a  broker  employed  to  procure  a  purchaser  of  real  estate 
for  an  agreed  commission,  and  his  authority  is  terminated,  he 


52  AMEEICAN  LAW  EEAL  ESTATE  AGENCY. 

gains  no  right  to  a  commission,  though  subsequently  the  prin- 
cipal is  benefited  by  his  efforts,  and  the  broker  is  not  entitled  to 
a  commission  though  the  owner  sells  to  the  first  person  offering 
the  price  asked  and  though  the  broker  at  the  time  has  negotia- 
tions under  way  with  a  prospect  of  success.  Siegel  v.  Rosenzweig, 
114  N.  Y.  Sup.  179,  129  App.  Div.  547. 

Defendant,  who  had  charge  of  certain  land  as  trustee,  wrote 
plaintiff  that  he  might  offer  the  same  for  sale  at  $75,000,  and  in 
the  event  of  a  sale,  he  should  receive  $2,000.  After  plaintiff  had 
interested  a  purchaser  in  the  property,  defendant,  knowing  that 
plaintiff  was  negotiating  with  such  purchaser,  canceled  plaintiff's 
authority,  and  himself  effected  a  sale  to  the  purchaser  by  an 
abatement  of  the  price.  Held,  that  plaintiff's  discharge  was 
wrongful,  and  that  he  was  entitled  to  recover  commissions.  Mc- 
Oovern  v.  Bennett,  109  N.  W.  1055,  146  Mich.  558. 

Where  it  is  not  claimed  that  the  plaintiff,  broker,  consented 
to  a  rescission  of  the  contract  to  sell,  the  only  questions  to  be 
considered  are,  whether  he  was  employed,  has  performed  his  ser- 
vices, and  has  not  received  his  compensation.*  Swift  v.  Moore,  82 
S.  E.  914,  15  Ga.  App.  254. 

Correspondence  between  defendant  and  real  estate  agents  held 
to  show  that  she  employed  them  as  her  agents,  and  hence,  upon 
discovery  that  offer  accepted  by  her  was  made  in  their  own  be- 
half, she  could  repudiate  the  sale.  Curran  v.  Kent,  153  N.  W. 
142,  35  S.  D.  523. 

Contract  executed  by  broker  can  be  repudiated  by  principal  so 
that  purchasers  can  not  enforce  it,  it  containing  terms,  among 
others,  that  vendors  shall  furnish  abstract  brought  down  to  date, 
contrary  to  the  provision  or  authorization  to  sell  that  "all  prices 
are  net,  clear  of  expenses".  Broadhead  &  Chapman  v.  Harrell, 
218  S.  W.  124,  —  Tex.  Civ.  App.  — . 

Where  brokers,  without  authority  from  their  principal,  con- 
tracted to  sell  more  land  than  the  principal  owned,  and  the  prin- 
cipal promptly  repudiated  the  contract  and  received  no  part  of 
such  money,  he  was  not  liable  to  the  purchaser  for  purchase 
money  received  by  the  brokers.  Hurford  v.  Norvall,  135  P.  1060, 
39  Okl.  496. 

The  rule  that  one  who  seeks  to  rescind  a  contract  must  rescind 
in  toto  is  inapplicable  to  a  suit  to  compel  a  real  estate  broker  to 


THE  CONTBACT  OP  AGENCY.  53 

surrender  profits  obtained  through  unfair  dealings  on  his  own 
account  with  the  subject  of  the  agency,  everything  to  which  he 
is  entitled  being  restored  to  him.  Steven  v.  Gavin,  99  N.  E.  663, 
255  111.  480. 

Broker  not  entitled  to  a  commission  where  purchaser  repudi- 
ated one  of  the  conditions.  Worthen  v.  Stewart,  172  S.  W.  855, 
116  Ark.  294. 

Defendant  agreed  to  pay  plaintiff  one  dollar  an  acre  for  find- 
ing a  purchaser  for  a  certain  farm  at  $37.50  per  acre.  After  in- 
troducing a  purchaser,  but  before  selling,  defendant  wrote  plain- 
tiff that  he  had  no  hopes  of  making  a  sale  to  such  purchaser,  and 
with  the  owners  of  the  land  requiring  $35.00  net  per  acre,  which 
price  had  been  quoted  to  the  proposed  purchaser,  that  if  plaintiff 
still  desired  to  assist  and  make  his  commission  from  the  purchase 
price  over  $35.00  per  acre,  he  was  at  liberty  to  proceed,  otherwise 
the  arrangement  would  be  revoked.  Held,  that  such  letter  did 
not  constitute  a  revocation  of  plaintiff's  authority  so  as  to  de- 
prive him  of  the  right  to  a  broker's  commission  on  the  subsequent 
consummation  of  a  sale  to  such  purchaser.  Provident  Trust  Co. 
v.  Darrough,  78  N.  E.  1030,  168  Ind.  29. 


CHAPTER  IV. 

SECTION  24.     Ratification. 

Sec.  24.    Ratification. 

Before  a  principal  can  be  bound  upon  the  ground  of  ratifica- 
tion, it  must  appear  that  he  had  full  knowledge  of  all  the  ma- 
terial facts  affecting  his  interest  in  the  transaction.  Maze  v. 
Gordon,  96  Cal.  61,  30  Pac.  962;  Eerr  v.  Sharp,  83  111.  199; 
Rowan  v.  Hyatt,  45  K  Y.  138;  Ferguson  v.  Gooch,  24  Va.  1,  26 
S.  E.  397;  Williams  v.  Moore,  24  Tex.  Civ.  App.  402,  58  S.  W. 
953 ;  Rosser  v.  Levi,  210  S.  W.  314,  —  Tex.  Civ.  App.  — .  See 
also  Sec.  624. 

The  ratification  of  the  act  of  an  unauthorized  broker  makes 
the  principal  liable  to  compensate  him  for  his  services.  Merrill 
v.  Latham,  8  Colo.  App.  263,  45  P.  524;  Hoyt  v.  Tuxbury,  70 
111.  331 ;  Downing  v.  Buck,  135  Mich.  636,  98  N.  W.  388 ;  Dayton 
v.  Am.  Steel  Barge  Co.,  73  N.  Y.  S.  316,  36  Misc.  223.  See  also 
Sees.  620,  621. 

The  same  rule  holds  true  where  the  broker  was  employed  by 
an  unauthorized  third  party.  McKinnon  v.  Hope,  118  Ga.  462, 
45  S.  E.  413 ;  Hurt  v.  Jones,  105  Mo.  App.  106,  79  S.  W.  486 ; 
Charles  v.  Cook,  84  N.  Y.  S.  867,  88  App.  Div.  81 ;  Lyle  v.  Ben- 
nett, 70  N.  Y.  S.  283,  34  Misc.  476 ;  Markham  v.  Washburn,  18 
N.  Y.  S.  355 ;  Graves  v.  Bains,  78  Tex.  92,  14  S.  W.  256 ;  Mc- 
Cormack  v.  McCaffery,  74  N.  Y.  S.  836,  36  Misc.  775;  Foss  v. 
N.  Y.  Cen.  &  H.  R.  R.  Co.,  146  N.  Y.  Sup.  930,  161  App.  Die. 
681 ;  judg.  affd,  112  N.  E.  1059,  217  N.  Y.  727.  This  is  espe- 
cially the  case  if  at  the  time  the  principal  has  knowledge  that 
the  broker  assumed  to  act  for  him.  Twelfth  St.  Market  Co.  v. 
Jackson,  102  Pa.  St.  269;  Gillespie  v.  Dick  (Tex.  Civ.  App.  '08), 
111  S.  W.  664;  Suter  v.  Farmers'  Fertilizer  Go.,  126  N.  E.  304, 
100  Ohio,  403. 
54 


THE  CONTRACT  OF  AGENCY.  55 

In  the  absence  of  a  contract  of  employment,  it  is  sufficient 
that  the  defendant  adopted  and  ratified  the  plaintiff's  acts.  Chil- 
ian v.  Butler,  1  E.  D.  Smith  (N.  Y.),  150;  Lawler  v.  Armstrong 
(Wash.  Sup.  '09),  102  P.  775.  And  such  ratification  relates 
back  to  the  making  of  the  contract.  Clark  v.  Van  Reinsdeck,  9 
Cranch  (U.  S.),  153;  Eoby  v.  Cassitt,  78  111.  638;  Goodell  \. 
Woodruff,  20  111.  191;  Bell  v.  Byerson,  11  Iowa,  233;  Barbour 
v.  Craig,  6  Litt.  (Ky.)  213;  Myers  v.  Simmons,  19  La.  Ann. 
370;  Williams  v.  Mitchell,  17  Mass.  98;  Lowry  v.  Harris,  12 
Minn.  255 ;  Baker  v.  Byrne,  10  Miss.  193 ;  Cowan  v.  Wheeler,  31 
Me.  439;  Despatch,  etc.,  v.  Bellamy  Mfg.  Co.,  12  N.  H.  205; 
Lyons  v.  Pya.it,  51  N.  J.  Bq.  60,  26  A.  334;  Como  v.  PL  Henry 
Co.,  12  Barb.  (N.  Y.)  27;  Weisinger  v.  Wheeler,  14  Wis.  109; 
Tanker-Clark  Realty  Co.  v.  Hedges,  133  P.  609,  24  Idaho,  304; 
S/everc  v.  Gavin,  90  N.  E.  663,  255  111.  480;  Carlson  v.  Marshall, 
174  111.  App.  438;  Whitney  v.  Bissell,  146  P.  141,  75  Or.  28, 
L.  E.  A.  1915  D,  257;  Harrall  v.  Bridges,,  162  S.  W.  1001,  — 
Tex.  Civ.  App.  — . 

A  principal,  however,  is  not  bound  by  the  ratification  of  a 
sale  of  real  estate  made  by  a  broker,  if  the  approval  was  brought 
about  by  misstatements  of  the  broker  as  to  the  terms  of  the  sale. 
Rowan  v.  Hyatt,  45  N.  Y.  138;  Edwards  v.  Davidson  (Tex.  Civ. 
App.  '04),  79  S.  W.  48;  Halsey  v.  Monteiro,  92  Va.  581,  24  S. 
E.  258;  Solmson  v.  Deese,  218  S.  W.  657,  —  Ark.  Sup.  — . 

Although  the  written  agreement  entered  into  by  the  broker 
may  have  been  so  imperfectly  executed  as  not  to  bind  either  of 
the  principals,  they  both  ratified  it  and  became  bound  by  its 
provisions,  by  their  letters  and  by  the  execution  and  tender  of 
the  deed  for  the  premises.  Lyons  v.  Pyatt,  51  1ST.  J.  Eq.  60,  26 
A.  534;  Ettinger  v.  Weatherhead,  29  Ohio  Cir.  Ct.  E.  137. 

A  sale  of  real  estate  by  the  owner  to  a  purchaser  with  whom 
a  broker  had  unauthorizedly  negotiated  was  not  a  ratification  of 
the  agency  of  such  broker.  Loving  Co.  v.  Hesperian  Cattle  Co., 
176  Mo.  330,  75  S.  W.  1095 ;  Copeland  v.  Stoneham  Tannery  Co., 
142  Pa.  St.  446,  21  A.  825 ;  WiUiams  v.  Moore,  24  Tex.  Civ.  App. 
402,  58  S.  W.  953.  See  also  Sees.  415,  618. 

In  other  cases,  where  the  broker  negotiated  sales  in  violation 
of  his  instructions,  and  the  owner,  by  correspondence  or  other- 
wise, agreed  thereto,  the  acts  were  ratified.  Sleeper  v.  Murphy, 


56  AMEBICAN  LAW  SEAL  ESTATE  AGENCY. 

120  Iowa,  132,  94  N.  W.  275;  Gelatt  v.  Eidge,  117  Mo.  553,  23 
S.  W.  882;  Smith  v.  Schiele,  93  Cal.  144,  28  P.  857;  Nesbit  v. 
Helser,  49  Mo.  383;  Suydam  v.  Vogel,  84  N.  Y.  S.  915;  Wood  & 
Tatum  Co.  v.  Easier,  173  P.  1109,  —  Cal.  App.  — .  See  Sec.  429. 

Where,  by  the  terms  of  the  contract,  a  warranty  deed  should 
have  been  executed  at  a  certain  time,  and  about  that  time  a 
special  warranty  deed  was  forwarded  to  the  owner  who  had 
executed  the  contract,  by  a  clerk  in  the  office  of  one  who  had 
authority  to  collect  rents,  etc.,  for  the  land-owner,  the  purchaser 
refused  to  accept  such  deed,  and  the  one  who  had  executed  the 
contract  returned  it  to  the  sender;  subsequently  a  letter  was  re- 
ceived by  the  one  who  had  executed  the  contract  stating  that 
the  land-owner  would  execute  no  other  deed,  signed  with  the 
firm  name,  one  of  the  names  being  the  same  as  that  of  the  land- 
owner, but  he  was  not  shown  to  have  been  a  member  of  the  firm. 
Held,  that  it  not  appearing  that  the  owner  knew  of  the  con- 
tract, no  ratification  was  shown.  Topliff  v.  Shadwell,  64  Kan. 
884,  67  P.  545 ;  Stemler  v.  Bass,  153  Cal.  791,  96  P.  809 ;  Foss 
Inv.  Co.  v.  Ater,  49  Wash.  446,  95  P.  1017;  Larson  v.  Newman 
(N.  D.  Sup.  '09),  121  N.  W.  202. 

A  broker  procured  to  be  made  to  himself  a  deed  of  land 
which  he  was  employed  to  sell,  the  grantor  intending  it  only 
as  a  means  of  carrying  into  effect  a  supposed  sale  to  a  third 
party,  but  the  grantee  secretly  intending  to  obtain  the  land  to 
his  own  use,  and  also  fraudulently  misrepresenting  the  value 
of  the  consideration,  which  consisted  of  certificates  of  stock  in 
mining  companies.  Held,  that  the  deed  was  not  void,  but  only 
voidable,  and  that  if  the  grantor,  who  soon  learned  the  facts 
entitling  him  to  an  avoidance,  neglected  for  more  than  two  years 
to  do  any  act  to  avoid  it,  and  exchanged  the  stock  for  other 
stocks,  he  must  be  taken  to  have  ratified  the  conveyance,  and 
could  not  maintain  a  writ  of  entry  to  recover  the  land.  Bassett 
v.  Brown,  105  Mass.  551.  Compare  Lightcap  v.  Nicola,  34  Pa. 
Super.  Ct.  189. 

Where  defendant's  husband  had  an  interview  with  plaintiff 
in  regard  to  a  sale  of  her  land,  and  that  in  response  to  a  letter 
from  plaintiff  the  husband  called  at  the  office  and  was  intro- 
duced to  T,  and  the  latter  showed  defendant  and  her  husband 
land  that  he  wished  to  exchange,  but  it  did  not  satisfy  defend- 


THE  CONTRACT  OP  AGENCY.  57 

ant ;  afterward  she  accepted  another  offer  made  by  T.  to  buy 
the  land;  on  the  trial  defendant  and  her  husband  attempted  to 
suppress  their  own  testimony,  and  their  conduct  justified  the  be- 
lief that  defendant  had  authorized  or  ratified  her  husband's 
act.  Sims  v.  Rockwell,  156  Mass.  372,  31  N.  E.  484. 

An  unauthorized  contract  of  sale  is  binding  upon  a  principal 
when  ratified  through  another  duly  authorized  agent.  Hoyt  v. 
Tuxbury,  70  111.  331.  A  principal  may,  by  accepting  the  pro- 
ceeds, ratify  a  sale  made  by  his  broker  upon  false  represen- 
tations. Kelly  v.  Carter,  55  Ark.  112,  17  S.  W.  706 ;  Powell  v. 
Gasson,  18  B.  Monroe  (Ky.),  179;  Stockbridge  v.  West  Stock- 
bridge,  14  Mass.  257,  261;  Vaughn  v.  Sheridan,  50  Mich.  155; 
Krumer  v.  Beach,  25  Hun  (N.  Y.),  293;  Roberts  v.  Hilton  Ld. 
M.  Co.,  45  Wash.  464,  88  P.  946 ;  Elwood  v.  Tiemair,  139  P.  362, 
91  Kan.  842;  Bond  v.  Humbert,  85  A.  943,  118  Md.  650.  See 
also  Sec.  622.  Ratification  may  arise  from  long  acquiescence. 
Kehler  v.  Eemble,  26  La.  Ann.  713;  Hull  v.  Harper,  17  111.  82; 
Williams  v.  Merritt,  23  111.  623.  From  the  bringing  of  a  suit  by 
the  principal  to  acquire  the  benefit  of  the  acts  of  the  alleged 
agent.  Bank  of  Beloit  v.  Beale,  34  N.  Y.  473;  Carsee  v.  Paul, 
41  N.  H.  24;  Walker  v.  Mobile,  etc.,  R.  Co.,  34  Miss.  245;  Folger 
v.  Mitchell,  3  Pick.  (Mass.)  396.  By  a  letter  from  the  principal 
to  his  agent  authorizing  certain  acts,  although  received  after  their 
performance.  Rice  v.  McLaren,  42  Me.  157. 

No  act  is  capable  of  ratification  unless  performed  by  the  agent 
in  behalf  of  his  principal.  Collins  v.  Snow,  1  Robt.  (N.  Y.) 
623;  Com.  Bank  v.  Jones,  18  Tex.  811;  Fellows  v.  Commission- 
ers, 36  Barb.  (N.  Y.)  655. 

The  policy  of  the  law  will  not  permit  a  principal  to  ratify 
an  unauthorized  act  in  part  and  repudiate  the  remainder;  it 
must  be  accepted  or  rejected  as  an  entirety.  Fisher  v.  Stevens, 
16  111.  397;  Henderson  v.  Gumming  s,  44  111.  325;  Wedner  v. 
Lane,  14  Mich.  124:  Elwell  v.  Chamberlain,  31  N.  Y.  611;  Cole- 
man  v.  Stark,  1  Ore.  115 ;  Bishop  v.  Stewart,  13  Nev.  25 ;  Newell 
v.  Hurlbnt,  2  Ver.  351;  Kyle  v.  Rippcy,  20  Oregon,  446,  26  P. 
308. 

A  principal  taking  possession,  knowing  of  a  mortgage  given 
by  the  agent  to  purchase  the  land  for  the  unpaid  purchase 
money,  and  a  note  executed  at  the  same  time  by  the  agent  for 
the  same  purpose,  ratified  his  acts.  Fouch  v.  Wilson,  59  Ind.  93. 


58  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

A  principal  will  not  be  held  to  have  ratified  unauthorized 
acts  of  his  agent  unless,  at  the  time,  he  was  fully  aware  of  all 
the  circumstances.  Owings  v.  Hall,  9  Peters  (U.  S.),  607; 
Fedrick  v.  Rice,  13  Iowa,  214;  Fletcher  v.  Dysart,  9  B.  Monroe 
(Ky.),  413;  Woodbury  v.  Larned,  5  Minn.  339;  Pittsburg,  etc., 
R.  v.  Gazzan,  32  Pa.  St.  340;  Hardeman  v.  Ford,  12  Ga.  205; 
Dodge  v.  McDonnell,  14  Wis.  600;  Dickerson  v.  Conway,  12 
Allen  (Mass.),  487;  Seymour  v.  Wychoff,  10  N.  Y.  213;  Stein  v. 
Kendall,  1  Bradwell  (111.),  193;  Bosseau  v.  O'Brien,  4  Biss.  (U. 
S.)  395. 

Before  a  person  can  be  bound  by  the  ratification  of  the  pur- 
chase of  certain  real  estate  by  his  broker,  instead  of  a  particu- 
lar lot,  it  must  appear  that  he  was  informed  of  all  the  material 
facts  in  the  transaction.  Kerr  v.  Sharp,  83  111.  199;  Stein  v. 
Kendall,  1  111.  App.  103. 

Where  an  agent  for  the  sale  of  real  estate  executed  his  in- 
structions in  selling  a  part  of  the  property  in  regard  to  which 
he  was  authorized  only  to  negotiate  for  a  sale,  and  his  prin- 
cipal afterward  impliedly  ratified  all  his  acts  by  receiving  the 
money  for  the  sale  of  all  the  land,  but  it  appeared  that  he  did 
not  know  that  the  portion  unintended  had  been  sold.  Held, 
that  the  agreement  made  by  the  agent  was  neither  authorized 
nor  ratified.  Lester  v.  Kinne,  37  Conn.  9.  The  unauthorized 
deed  of  an  agent,  whore  still  required  to  be  sealed,  can  be  rati- 
fied only  by  an  instrument  under  seal.  Spofford  v.  Hobbs,  29 
Me.  148;  Drumright  v,  Philpot,  16  Ga.  424;  Reese  v.  Medlock, 
27  Tex.  120.  "Where  the  instrument  unauthorizedly  executed  by 
the  agent  did  not  require  a  seal,  a  written  ratification  without 
suffices.  Crozier  v.  Karr,  11  Texas,  376;  Adams  v.  Power,  52 
Miss.  828. 

In  those  States  which  do  not  require  the  authority  of  the  agent 
to  be  in  writing  the  principal  may  ratify  by  parol.  1  Parsons 
on  Con.  52 ;  Hammond  v.  Hannin.  21  Mich.  374.  And  in  States 
where  parol  ratification  prevails,  the  approval  of  the  principal 
may  be  inferred  from  acts.  Hammond  v.  Hannin,  21  Mich.  374. 
Where  a  written  contract  for  the  sale  of  lands  was  made  by 
one  to  whom  power  therefor  could  not  be  delegated,  such  act 
may  be  ratified  by  an  instrument  in  writing  to  satisfy  the  stat- 
ute of  frauds.  Newton  v.  Bronson,  13  N.  Y.  587. 


THE  CONTEACT  OF  AGENCY.  59 

In  Pennsylvania  an  unauthorized  lease  of  land  by  an  agent 
for  a  longer  period  than  three  years  can  be  ratified  by  the  owner 
only  in  writing.  McDowell  v.  Simpson,  3  Watts  (Pa.),  129. 
When  informed  of  the  unauthorized  acts  of  his  agent  the  prin- 
cipal must,  within  a  reasonable  time,  elect  to  approve  or  disap- 
prove; if  he  does  not  disaffirm  them  the  agent  may  presume 
that  his  conduct  has  been  approved;  silence  will  be  equivalent 
to  approval.  Meyer  v.  Morgan,  51  Miss.  21 ;  Hawkins  v. 
Sanger,  22  Minn.  557. 

One  does  not  ratify  the  unauthorized  acts  of  others  in  exe- 
cuting a  contract  of  sale  of  his  lots  by  merely  remaining  silent 
a  long  time,  he  not  having  known  of  the  facts  and  having  been 
misled  in  important  particulars  by  their  letter,  having  received 
no  benefits  under  the  contract,  and  his  silence  not  having  caused 
the  vendee  to  change  his  position  for  the  worse.  Colvin  v. 
Blanchard  (Tex.  Sup.  '07),  106  S.  W.  323;  affirming  103  S.  W. 
1118;  List  &  Son  Co.  v.  Chase,  80  0.  St.  42;  Cohen  v.  Jackson, 
96  N.  E.  669,  210  Mass.  328;  Smith  v.  Craig,  112  P.  513,  61 
iWash.  528;  Crumpacker  v.  Jeffrey,  115  N".  E.  62. 

Where  a  property  owner,  with  knowledge  of  the  custom  of  real 
estate  agents  to  charge  both  parties  commissions  on  exchange  of 
property,  allows  the  broker  to  render  the  services  and  remains 
silent,  the  broker  is  entitled  to  recover  a  commission  from  him. 
Ram ey  v.  Sturgeon,  86  S.  E.  660,  17  Ga.  App.  292. 

A  valid,  binding  ratification,  when  made,  can  not  be  revoked, 
but  the  principal  must  abide  by  it,  whether  it  be  to  his  detri- 
ment or  to  his  advantage.  Watterson  v.  Rogers,  21  Kan.  529. 
In  the  absence  of  express  ratification  by  the  principal,  there 
must  be  an  appropriation  by  him  of  the  services  of  the  broker 
under  such  circumstances  as  would  render  the  withholding  of 
remuneration  therefor  inequitable.  Atwater  v.  Lockwood,  39 
Conn.  45;  Albany  La.nd  Co.  v.  Rickel,  162  Ind.  222,  70  N.  E. 
158,  Ettingcr  v.  Weatherhead,  29  Ohio  Cir.  Ct.  R.  137. 

W,  the  president  of  the  defendant  company,  agreed  to  pay 
the  plaintiff  a  commission  for  procuring  a  purchaser  of  land 
which  they  thought  belonged  to  W.  but  which  belonged  to  the 
company,  plaintiff  procured  a  purchaser  and  W  sold  him  the 
land — the  company  knew  nothing  of  the  contract  with  plaintiff, 


60  AMERICAN   LAW  KEAL   ESTATE   AGENCY. 

but  ratified  the  sale  and  made  a  deed  to  the  purchaser.  Held, 
that  plaintiff  could  not  recover  commissions  from  the  company. 
Copeland  v.  Stoneham  Tannery  Co.,  142  Pa.  St.  446,  21  Atl.  825. 

A  contract  of  sale  of  realty  was  made  by  one  having  no  title 
nor  authority  to  execute  such  an  instrument;  the  attorney  for 
the  purchaser  was  informed  by  the  equitable  owner  that  such 
person  was  authorized  to  sell.  Held,  that  such  statement  was  a 
ratification  of  the  agent 's  authority  which  estopped  the  equitable 
owner  from  denying  it.  Gregg  v.  Corey,  4  Gal.  App.  354.  88 
P.  282. 

Where  an  agent  is  authorized  to  procure  a  purchaser  for  real 
estate  at  a  fixed  sum  and  for  a  stipulated  compensation,  he  can 
recover  the  compensation  when  he  procures  a  purchaser  to 
whom  the  owner  sells,  although  he  accepts  a  less  sum  than  that 
at  which  he  authorized  the  agent  to  sell.  Ice  v.  Maxwell,  61 
W.  Va.  9,  55  S.  E.  899 ;  Weeks  v.  Smith  (N.  J.  Sup.  '10) ,  75 
A.  773. 

"Where  the  defendant  put  real  estate  in  the  hands  of  the  plain- 
tiff to  sell,  directing  him  not  to  sell  it,  but,  nevertheless,  for- 
getting the  injunction  placed  upon  him  he  did  advertise  the 
property,  and  a  person  reading  the  same  went  directly  to  the 
defendant  who  sold  him  the  property,  this  was  a  ratification 
of  plaintiff's  departure  from  instructions,  and  the  defendant 
was  liable  to  the  plaintiff  for  commissions.  Maloon  v.  Barrett, 
192  Mass.  552,  78  N.  E.  560. 

Where  plaintiff,  having  obtained  from  the  defendant  a  state- 
ment as  to  the  price  and  terms  at  which  to  sell  certain  real 
estate,  found  a  person  able  and  willing  to  purchase  on  the 
terms  stated,  and  notified  the  defendant,  enclosing  a  deed  for 
execution,  which  defendant  executed  and  sent  to  one  R,  with  a 
letter  constituting  R,  his  agent,  to  deliver  the  deed  and  com- 
plete the  sale,  if  the  terms  were  the  best  obtainable,  defendant, 
through  the  said  agent  R,  refused  to  accept  such  terms  and  re- 
fused to  deliver  such  deed.  Held,  that  these  facts  amounted 
neither  to  an  acceptance  of  the  plaintiff's  proposal,  nor  to  a 
ratification  of  the  unauthorized  acts  of  plaintiff  in  negotiating 
with  a  third  person  for  the  purchase  of  the  property.  Harris 
v.  Reynolds  (North  Dak.  '07),  Supreme  Court,  114  N.  W.  369. 

If  a  broker  undertakes  to  modify  his  authority  the  principal 


THE  CONTRACT  OF  AGENCY.  61 

may  repudiate  and  decline  to  be  bound  thereby,  or  he  may  ratify 
his  act  and  be  bound  by  the  change.  Phinizy  v.  Bush,  129  Ga. 
479,  59  S.  E.  259.  In  a  suit  for  commissions  for  finding  a 
purchaser  for  land  listed  with  brokers,  and  by  them  relisted 
with  plaintiff's  firm,  it  was  essential  to  authorize  a  recovery 
that  the  land  was  so  relisted  by  authority  from  defendant,  either 
express  or  implied,  unless  after  the  land  was  listed  with  the 
first  brokers,  they  so  relisted  it,  and,  defendant  being  aware 
of  it,  ratified  the  act.  Sterling  v.  DeLaune  (Tex.  Civ.  App.  '07), 
105  S.  W.  1169. 

Under  the  Missouri  statute  providing  that  no  contract  for  the 
sale  of  real  estate,  made  by  an  agent,  shall  be  binding  unless 
the  agent  be  authorized  in  writing  to  make  the  contract,  the 
ratification  of  the  contract  by  the  principal  for  the  sale  of  land 
by  the  agent  must  be  in  writing,  where  no  element  of  equitable 
estoppel  exists.  Johnson  v.  Fecht,  185  Mo.  335,  83  S.  W.  1077. 

Under  Burns's  Stat.  1908,  sec.  7463,  requiring  a  contract  for 
a  commission  for  the  sale  of  land  to  be  in  writing,  signed  by  the 
owner  or  his  representative,  held,  as  an  owner  could  not  sign  his 
name  by  the  broker,  his  subsequent  statement  to  the  broker  that 
he  would  pay  the  commission  stated  in  the  contract  signed  by 
the  broker  could  not  amount  to  a  ratification.  Lowe  v.  Mohler, 
105  N.  E.  934,  56  Ind.  App.  593. 

Where  a  third  party  conducted  negotiations,  procured  a  loan, 
and  drew  the  note  and  mortgage,  on  which  suit  was  based,  for 
defendant,  though  not  authorized  directly  to  do  so  for  them,  and 
they  accepted  the  loan  and  executed  the  note  and  mortgage,  they 
thereby  ratified  the  acts  of  such  third  party  and  were  bound 
thereby  as  effectually  as  though  they  had  expressly  authorized 
him  to  act  as  their  agent.  Marks  v.  Taylor,  23  Utah,  470,  63 
P.  897,  65  P.  203. 

Where  the  contract  of  a  sub-agent  is  ratified  by  the  owner,  in 
case  of  a  sale  the  sub-agent  may  sue  the  owner  for  the  commis- 
sion, and  is  not  limited  to  his  action  against  the  broker  employ- 
ing him.  Warren  Com.  &  Inv.  Co.  v.  Hull  R.  E.  Co.,  120  Mo. 
App.  432,  96  S.  W.  1038;  Mechem  on  Agency,  Sees.  197,  227. 

Under  L.  0.  L.  sec.  808,  requiring  brokers'  authority  to  sell 
lands  to  be  in  writing,  with  the  owner's  consent  to  sales  to  a 
purchaser  procured  by  a  sub-agent  of  his  broker,  with  knowledge 


62  AMERICAN  LAW  BEAL  ESTATE  AGENCY. 

that  the  purchaser  had  been  so  procured,  was  not  such  a  ratifica- 
tion of  the  sub-agent's  oral  employment  as  would  hold  the  owner 
for  a  commission.  Sorensen  v.  Smith,  129  P.  757,  65  Or.  78,  51 
L.  R.  A.  (N.  S.)  612,  Ann.  Cases  1915  A,  1127;  judg.  affd  on  re. 
131  P.  1022,  65  Or.  78. 

Where  the  owner  at  first  refuses  an  offer  as  too  low,  and  dis- 
charges the  broker,  and  thereafter,  through  another  broker,  ac- 
cepts, he  is  liable  to  the  first  broker  for  commissions,  the  sale 
having  been  made  to  his  customer  at  the  price  originally  offered. 
Gottschalk  v.  Jennings,  1  La.  Ann.  5;  Cadigan  v.  Crabtree,  179 
Mass.  474,  61  N.  E.  37,  55  L.  R,  A.  77;  Buehler  v.  Weiffenbach, 
46  N.  Y.  S.  861,  21  Misc.  30 ;  Peckham  v.  Ashhurst,  18  R.  I.  376, 
28  A.  337. 

Where  a  broker  sent  a  customer  to  his  principal,  and  the  cus- 
tomer told  him  that  the  broker  had  shown  him  the  land,  this 
was  held  sufficient  to  bind  and  obligate  the  principal  to  pay 
the  broker  for  the  services  he  rendered  in  procuring  the  pur- 
chaser. Eeislius- Reiner  Land  Co.  v.  Benner,  91  Minn.  401,  98 
N.  W.  186. 

A  co-agent,  under  a  power  to  sell,  is  not  bound  by  an  unau- 
thorized option,  not  given  or  ratified  by  himself,  and  if  he  pur- 
chases the  land  for  himself,  can  not  be  held  as  a  trustee  for  the 
claimant  under  the  option.  Tibbs  v.  Zirkle,  55  W.  Va.  49,  46 
S.  E.  701,  104  Am.  St.  R.  977.  An  owner  who  has  sanctioned 
sales  by  accepting  the  proceeds  can  not  contend  that  the  power 
of  attorney  did  not  authorize  the  sales.  Vaughn  v.  Sheridan, 
50  Mich.  155.  A  principal  appropriating  the  benefits  of  an 
unauthorized  act  of  a  broker  becomes  liable  by  the  ratification 
to  compensate  him  for  his  services.  Merrill  v.  Latham,  8  Colo. 
App.  263,  45  P.  524;  Downing  v.  Buck,  135  Mich.  636,  98  N. 
W.  388;  Dayton  v.  Am.  Steel  Barge  Co.,  73  K  Y.  S.  316,  36 
Misc.  223;  Barbour  v.  Cantrell,  69  S.  67,  193  Ala.  154;  Duncan 
v.  Turner,  154  S.  W.  816,  171  Mo.  App.  661;  Wilson  v.  Burch, 
162  S.  W.  1018,  —  Tex.  Civ.  App.  — ;  Henderson  &  Grant  v. 
Gilbert,  171  S.  W.  304;  Fishback  v.  Vining,  125  P.  559,  22  Colo. 
App.  419;  Record  v.  Littlefield,  106  N.  E.  142,  218  Mass.  483; 
Stevens  v.  Odlin,  84  A.  899,  100  Me.  417;  Crumpacker  v.  Jeffrey, 
115  N".  E.  62,  —  Ind.  App.  — . 

A  real  estate  agent  inquired  of  an  owner  whether  he  would 


THE  CONTRACT  OF  AGENCY.  63 

sell  real  estate  for  $6,500  cash,  clear  of  special  taxes.  The  owner 
replied  that  he  would  sell  for  that  sum,  net.  The  agent  con- 
tracted with  a  purchaser  for  a  sale  at  $7,000,  payable  on  de- 
livery of  a  warranty  deed  and  abstract,  all  assessments  to  be 
paid,  and  notified  the  owner  of  the  sale  and  requested  an  ab- 
stract. The  owner  sent  an  abstract,  and  stated  that  it  was  his 
understanding  that  the  price  was  $6,500  net,  and  that  he  would 
pay  no  back  taxes  or  any  other  expenses.  Held,  that  the  con- 
tract was  not  enforceable  against  the  owner,  since  he  neither 
authorized  the  agent  to  make  it.  nor  ratified  it.  Hutckins  v. 
Wertheimer,  51  Wash.  539,  99  P.  577.  See  references  under 
Sec.  307. 

Owner  of  lots  held  to  have  accepted  and  approved  real  estate 
agent's  plan  to  sell  the  lots  subject  to  building  restrictions  by  ex- 
ecuting deeds  containing  the  restrictions.  Wiegman  V.  Kusel, 
110  N.  E.  884,  270  111.  520. 

General  power  of  attorney  from  a  widow  is  sufficient  to  autho- 
rize the  holder  to  agree  on  her  behalf  to  pay  a  commission  for 
selling  her  land,  authorized,  after  a  sale,  the  reduction  of  the 
agreement  to  writing  correcting  the  defect  of  the  parol  agree- 
ment, under  Civil  Code,  sec.  2307,  providing  that  an  agency  may 
be  created  by  ratification.  Stieglitz  v.  Settle,  165  P.  436,  —  Cal. 
Sup.  — . 

Where  real  estate  brokers,  who  undertook  to  trade  lands  to  de- 
fendant's satisfaction,  and  in  such  manner  that  defendant  would 
get  a  small  tract  of  80  or  120  acres,  actually  made  a  trade  for 
town  property  which  defendant  ratified  and  carried  out,  defend- 
ant is  conclusively  presumed  to  have  been  satisfied,  and  is  liable 
for  commission.  Peterson  v.  Wilds,  173  N.  W.  126,  —  Iowa 
Sup.  — . 


CHAPTER  V. 

SECTION.  SECTION. 

25.  Privity.  28-     Assignees    and    assignments. 

26.  The  power  of  attorney,  its  ex-       29.     Attorneys  at  Law. 

tent  and  limitations.  30.     Auctions  and  Auctioneers. 

27.  The  attorney  in  fact. 

Sec.  25.    Privity. 

In  the  absence  of  contractual  relations,  a  sub-agent  is  not 
entitled  to  recover  from  the  owner  for  want  of  privity.  J.  B. 
Watkins  Ld.  Mtge.  Co.  v.  Thetford  (Tex.  Civ.  App.  '06),  96 
S.  W.  72;  Sterling  v.  DeLaune  (Tex.  Civ.  App.  '07),  105  S.  W. 
1169.  See  also  Sec.  393.  Ranney  v.  Donovan,  78  Mich.  318,  44 
N.  W.  276;  Mechem  on  Ag.  Sees.  197,  227;  Mueller  v.  Bell 
(Tex.  Civ.  App.  '09),  117  S.  W.  993. 

Fraudulent  representations  made  to  the  principal  by  third 
parties  in  privity  with  the  broker,  defeat  his  right  to  commis- 
sions. Mullen  v.  Bower,  22  Ind.  App.  294,  53  N.  E.  790.  See 
also  Sees.  390,  391.  If  A  is  employed  as  a  broker  to  sell  B's 
house,  on  an  agreement  that  he  will  inform  B,  if  he  sends  a 
purchaser,  and  A  and  C  then  agree  that  if  C  will  procure  a 
purchaser,  he  shall  share  with  A  in  the  commission,  and  C,  in 
going  to  look  at  the  house,  tells  B  that  no  broker  has  anything 
to  do  with  the  trade,  and  a  price  is  named  on  that  understand- 
ing, and  the  house  is  bought  by  a  purchaser  procured  by  C,  A 
and  C  are  partners  in  the  business  of  effecting  a  sale  of  B's 
house  to  such' purchaser,  and  C's  fraud,  though  not  partici- 
pated in  by  A,  will  bar  an  action  by  A  against  B  for  the  com- 
mission, prosecuted  for  the  joint  benefit  and  at  the  joint  ex- 
pense of  A  and  C.  Thwing  v.  Clifford,  136  Mass.  482;  Haven 
v.  Tartar,  124  Mo.  App.  69i,  102  S.  W.  21. 

A  broker  employed  to  sell  real  estate  is  unable,  for  want  of 
privity,  to  enforce  a  stipulation  in  the  contract  of  sale  be- 
tween vendor  and  vendee  by  which  the  latter  agrees  to  pay  the 
64 


THE  CONTRACT  OF  AGENCY.  65 

commission.  Bab  v.  Hirsohbein,  11  N.  T.  S.  776;  Gridley  v. 
Bayless,  43  111.  App.  503;  Lawyer  v.  Post,  109  Fed.  Rep.  512, 
47  C.  C.  A.  491;  Davenport  v.  Ash,  121  La.  209,  46  S.  213; 
Le  Master  v.  Dotham  Real  Est.  Ag.  (T.  C.  A.  '09),  121  S.  W. 
185.  See  also  Sec.  662.  For  the  same  reason,  a  purchaser  can 
not,  in  an  action  ex  contractu,  recover  from  the  agent  of  the 
seller  the  excess  paid  to  the  agent  beyond  the  price  demanded 
by  the  seller.  Lazarus  v.  Sands,  27  N.  Y.  S.  885,  7  Misc.  R.  282, 
33  N.  Y.  S.  855,  12  Misc.  R.  575. 

Where  an  agent  to  sell  property  sells  to  a  firm  of  which  he 
is  a  member,  without  the  knowledge  of  the  principal  that  he  is 
interested  in  the  purchase,  the  partners  of  the  agent  can  not 
recover  damages  of  the  principal  on  account  of  misrepresenta- 
tions made  by  the  agent,  they  being  parties  to  his  violation  of 
his  trust.  Pineville  v.  Hollingsworth,  21  Ky.  L.  R.  899,  53 
S.  W.  279. 

Purchasers  of  land  were  under  no  legal  obligation  to  the 
owner's  broker,  and  could  so  arrange  the  purchase  as  to  permit 
another  broker  to  procure  the  commission,  though  the  owner's 
broker  drew  their  attention  to  the  property,  and  he  has  no 
cause  of  action  against  the  other  broker,  his  remedy  being  against 
his  principal,  if  he  was  the  procuring  cause  of  the  sale.  Op- 
penheimer  v.  Barnett,  116  N.  Y.  S.  44. 

A  purchaser  of  property  from  a  broker  could  not  defeat  the 
broker's  right  of  action  on  a  check  of  the  purchaser  turned  over 
to  him  by  the  owner  of  the  property  sold,  because  the  broker  made 
false  representations  as  to  what  the  owners  would  sell  for.  Arono- 
witz  v.  Woolard,  152  N.  Y.  Sup.  11,  166  App.  Div.  365. 

Where  title  to  land  remains  in  his  principal,  a  broker  whose 
commission  is  contingent  on  closing  a  sale  has  no  such  an  inter- 
est in  the  sale  contract  as  entitled  him  to  sue  for  its  breach,  al- 
though the  contract  is  made  in  the  broker's  name.  Hardie  v.  Dan 
Sonnentheil  Co.,  192  S.  W.  1161,  —  Tex.  Civ.  App.  — . 

Where  agent  of  a  farm  employed  another  broker  as  agent,  who 
sold  the  farm  at  a  price  in  excess  of  the  minimum  demanded, 
pocketing  the  difference,  the  seller,  by  a  cross-complaint  for  such 
difference,  ratified  the  appointment  and  the  sale,  so  that  there 
was  a  privity  of  contract  with  the  selling  agent  which  entitled 


66  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

the  owner  to  recover,  as  the  real  party  in  interest,  such  difference. 
Burt  &  Carlquist  Co.  v.  Marks,  177  P.  224,  —  Utah  Sup.  — . 

Where  agent  for  the  sale  of  land  had  previously  agreed  with 
a  third  person  to  divide  commission  with  him,  such  third  person 
was  neither  a  necessary  nor  a  proper  party  to  an  action  for  com- 
missions, the  owner  of  the  land  not  being  in  privity  with  him. 
Jenkins  v.  Irwin,  178  P.  33,  —  Ariz  Sup.  — . 

A  realty  broker  who  procured  defendant  to  agree  to  exchange 
his  land  for  the  land  of  the  broker's  principal  is  not  entitled  to 
recover  damages  by  way  of  lost  commissions  from  defendant  who 
has  refused  to  perform.  Baker  v.  Qreer,  208  S.  W.  755,  —  Tex. 
Civ.  App.  — . 

Sec.  26.    The  power  of  attorney,  its  extent  and  its  limitations. 

A  power  of  attorney  to  buy  and  sell  real  estate,  etc.,  does 
not  authorize  a  sale  of  land  acquired  by  the  grantor  before  h& 
executed  such  power.  Greve  v.  Coffin,  14  Minn.  345. 

In  one  case  it  was  held  that  the  word  "sell,"  in  a  power  of 
attorney  authorizing  a  party  to  sell  or  lease  any  and  all  real 
estate,  etc.,  gives  ample  power  to  complete  a  sale  by  making- 
a  deed  of  conveyance  to  the  purchaser.  Hemstreet  v.  Burdick, 
90  111.  444.  Compare  Bacon  v.  Davis  (Cal.  App.  '08),  98  P.  71. 
Where  the  power  granted  to  the  agent  is  special,  if,  in  an  at- 
tempt to  bind  his  principal,  he  varies  from  it,  his  act  is  void. 
Mitchell  v.  Sproul,  5  J.  J.  Marsh  (Ky.),  264.  An  agent  em- 
ployed to  collect  rents  is  without  authority  to  employ  an  en- 
gineer. Crozier  v.  Reins,  4  111.  App.  564.  A  power  of  attorney 
confirming  all  sales  and  leases  confers  power  to  sell  land.  Sulli- 
van v.  Davis,  4  Cal.  291.  A  power  of  attorney  to  sell  one-half 
of  a  tract  of  land  imposes  discretion  to  determine  which  half. 
Alemany  v.  Daly,  36  Cal.  90. 

A  power  of  attorney  to  sell  any  or  all  of  constituent's  real 
estate,  authorizes  the  sale  of  that  acquired  subsequently.  Faty 
v.  Winchester,  4  Mete.  (Mass.)  513;  Burkey  v.  Judd,  22  Minn. 
287.  A  power  to  sell  all  land  principal  has  not  previously  con- 
veyed authorizes  the  sale  of  that  which  had  been  sold  but  not 
conveyed.  Mitchell  v.  Maupin,  3  T.  B.  Mon.  (Ky.),  185. 

A  power  authorizing  an  agent  "to  grant,  bargain  and  sell'*' 
certain  lands,  or  any  part  or  parcel  thereof,  authorizes  the  agent 
to  sell  on  reasonable  credit,  to  receive  payment,  and  a  payment 


THE  CONTRACT  OF  AGENCY.  67 

to  him  was  a  payment  to  the  principal,  and,  if  circumstances 
rendered  it  favorable  for  the  interest  of  his  principal,  he  might 
include  other  valuable  considerations  besides  money,  and  might 
sell  an  undivided  interest  in  the  property.  Carson  v.  Smith,  5 
Minn.  78. 

In  Illinois,  a  power  of  attorney  not  under  seal  will  authorize 
the  attorney  to  sell  land,  if  it  so  provides,  but  not  to  convey 
it.  Watson  v.  Sherman,  84  111.  263,  267.  A  power  to  sell 
land  for  the  purpose  of  settlement  is  not  invalidated  if  it  after- 
ward appear  that  the  land  was  bought  on  speculation,  and  there 
was  no  fraud  practiced  by  the  purchasers.  Spofford  v.  Hobbs, 
29  Me.  148.  A  power  of  attorney  to  secure  the  right  and  title 
of  the  principal  to  certain  lands,  to  employ  lawyers,  etc.,  does 
not  confer  authority  to  convey  half  the  land  to  the  lawyers  for 
their  services  and  for  their  agreeing  to  provide  for  the  expense 
of  a  suit  to  confirm  the  title  and  in  case  of  success  to  pay  the 
attorneys  a  certain  sum  in  addition.  Blum  v.  Robertson,  24  Cal. 
128. 

A  power  of  attorney  to  sell  land  does  not  include  power  to 
lease  or  exchange  it.  Trudo  v.  Anderson,  10  Mich.  357 ;  Lamp- 
kin  v.  Wilson,  5  Heisk.  (Tenn.)  555 ;  Reese  v.  Medlock,  27  Texas, 
120.  Nor  does  a  power  to  sell  land  include  power  to  mortgage 
it.  Stronghill  v.  Anstey,  1  De  Gex,  M.  &  G.  (Eng.)  635;  Payn 
v.  Cooper,  16  Beaven  (Eng.),  396;  Halderby  v.  Spofford,  1 
Beavan  (Eng.),  390;  Jeff  ray  v.  Hurst,  49  Mich.  31;  Contant  v, 
Servoss,  3  Barb.  (N.  Y.)  128;  Russell  v.  Russell,  36  N.  Y.  581; 
Bloomer  v.  Waldron,  3  Hill  (N.  Y.),  361;  Taylor  v.  Galloway, 
1  Ohio,  232. 

A  power  to  do  all  things  concerning  "my  real  and  personal 
estate"  gives  power  to  make  leases,  with  privilege  of  purchase. 
De  Rutte  v.  Muldrew,  16  Cal.  505.  A  power  to  sell  in  lots  does 
not  sustain  the  sale  of  a  portion  of  the  land,  and  a  conveyance 
thereof  was  held  invalid.  Rice  v.  Tavernier,  8  Minn.  248.  Under 
a  general  power  to  sell  property  the  agent  may  bind  by  a  con- 
tract of  sale.  Haydock  v.  Stewe,  40  N.  Y.  363.  A  deed  executed 
under  a  defective  power  of  attorney  will  be  treated  as  a  con- 
tract of  sale.  Hersey  v.  Lambert,  50  Minn.  373,  52  N.  W.  963. 
A  purchaser  of  real  estate  from  an  agent  is  bound  to  ascertain 
the  limits  of  his  power  to  bind  his  principal.  Milne  v.  Kleb, 


68  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

14  A.  646,  810,  44  N.  J.  Eq.  378.  See  also  Sec.  18.  Where  the 
instrument  to  be  executed  requires  two  witnesses,  the  power 
must  have  that  numher  also.  Gage  v.  Gage,  30  N.  H.  420. 

A  power  to  purchase  with  particular  funds  invests  the  agent 
with  no  authority  to  mortgage  the  property  to  secure  the  pur- 
chase money,  and  such  instrument  will  not  bind  the  property. 
Fraser  v.  McPherson,  3  Desau.  (S.  C.)  393.  Where  one  has 
made  conveyances  under  a  power  of  attorney,  and  the  owner 
has  sanctioned  the  sales  by  accepting  the  proceds  she  can  not 
contend  that  the  power  did  not  authorize  sales.  Vaughn  v. 
Sheridan,  50  Mich.  155.  A  power  of  attorney  to  sell  real  es- 
tate, without  restriction,  authorizes  a  sale  with  covenants  of 
general  warranty.  Le  Eoy  v.  Beard,  8  How.  (U.  S.)  451;  Peters 
v.  Farnsworth,  15  Vt.  155;  Venada  v.  Hopkins,  1  J.  J.  Marsh. 
(Ky.),  285,  293;  Taggart  v.  Stanlerry,  2  McLean  (U.  S.),  543. 
(See  Sec.  418  for  cases  supporting  the  contrary  doctrine.) 

A  power  of  attorney  to  sell  real  estate  may  limit  the  time 
within  which  to  perform  the  act;  where  it  fixes  a  reasonable 
time  for  doing  the  act,  it  must  be  done  by  the  attorney  within 
a  reasonable  time  in  order  to  bind  the  principal,  and  a  pro- 
posal of  sale  made  under  such  a  power  must  be  accepted  within 
a  reasonable  time  from  the  date  of  the  power.  Dyer  v.  Duffy, 
39  W.  Va.  148,  19  S.  E.  540,  24  L.  R,  A.  339. 

Where  a  broker's  power  contained  no  power  of  substitution 
he  could  not  delegate  his  agency  to  another;  hence,  a  contract 
of  sale  having  been  made  by  a  sub-agent  it  was  proper  for  the 
broker  to  obtain  a  re-execution  thereof.  KHpatrick  v.  Wiley, 
197  Mo.  123,  95  S.  W.  213.  A  power  to  sell  is  not  violated  by 
a  contract  containing  provisions  not  in  it  making  time  of  the 
essence  of  the  contract.  Id. 

Plaintiff  was  appointed  defendant's  agent  to  sell  certain  land, 
and  he  sued  for  damages,  in  lieu  of  commissions,  alleging  that 
the  completion  of  the  sale  was  prevented  by  defendant's  failure 
to  have  the  land  surveyed  and  refusal  to  extend  the  agency,  the 
agent  made  a  verbal  sale,  not  binding  on  the  purchaser  on  con- 
dition that  the  tract  on  survey  should  contain  a  certain  number 
of  acres.  Held,  that  the  defendant's  failure  to  have  the  land 
surveyed  did  not  excuse  plaintiff's  failure  to  make  a  binding 
sale,  and  did  not  entitle  him  to  damages  when  his  authority  to 


THE  CONTEACT  OF  AGENCY.  69 

sell  expressly  empowered  him  to  have  the  land  surveyed  at  the 
owner's  expense.  Smith  v.  Tate,  82  Va.  657. 

Where  authority  is  given  to  two  or  more  jointly  to  do  an  act, 
all  must  concur  in  doing  it.  Hartford  Fire  Ins.  Co.  v.  Wilcox, 
57  111.  180. 

An  agent  making  a  contract  without  authority  or  in  excess 
thereof,  binds  himself.  See  Sec.  307b. 

Sec.  27.    The  Attorney  in  fact. 

An  attorney  in  fact  is  one  who  has  authority  given  him  to 
act  in  the  place  and  stead  of  him  by  whom  he  is  delegated. 
Bacon's  Abr.  All  persons  who  are  capable  of  acting  for  them- 
selves, and  even  those  who  are  disqualified  from  acting  in  their 
own  capacity,  if  they  have  sufficient  understanding,  as  infants 
of  a  proper  age,  and  femes  covert,  may  act  as  attorneys  for 
others.  Bouvier's  Law  Die. 

Where  two  persons  are  appointed  with  equal  authority  to 
act  for  a  principal,  the  right  is  not  exclusive  in  either,  but  any 
act  done  by  either,  within  the  scope  of  his  authority,  will  con- 
clude the  other.  Cushman  v.  Glover,  11  111.  600 ;  Glenn  v.  David- 
son, 37  Md.  365. 

Sec.  28.    Assignees  and  assignments. 

A  broker  who  is  the  owner  of  an  entire  demand  for  commis- 
sions! may  assign  an  item  of  it,  though  he  recovers  on  the  re- 
mainder, his  recovery  will  not  bar  the  assignee  from  recovering 
on  the  item  assigned  to  him,  though  the  demand  is  not  legiti- 
mately the  subject  of  distinct  action  and  might  have  been  in- 
cluded in  the  original  action.  Goldshear  v.  Barron,  85  N.  Y.  S. 
395,  42  Misc.  198. 

The  contract  of  a  firm  to  act  as  real  estate  agents  for  a  corpora- 
tion was  assigned  to  one  member  of  the  firm,  who  proceeded 
with  the  business,  selling  the  lots  and  rendering  monthly  re- 
ports in  his  own  name;  the  corporation  accepted  the  reports 
and  proceeds  of  the  sales,  and  executed  checks  and  other  papers 
to  the  assignee  in  his  own  name.  Held,  a  ratification  of  the 
assignment.  Albany  Land  Co.  v.  Rickel,  162  Ind.  222,  70  N.  E. 
158. 

Where  M,  having  the  sale  of  land  turned  it  over  to  L,  agreeing 


70  AMERICAN  LAW  REAL   ESTATE  AGENCY. 

that  L  should  be  paid  the  commission,  to  which  the  owner  con- 
sented, L  was  entitled  to  claim  commissions  directly,  and  not 
as  assignee  of  M.  Munson  v.  Mabon,  135  Iowa,  335,  112  N.  W. 
775. 

If  a  broker  having  charge  of  the  property  of  a  syndicate, 
makes  a  contract  of  sale  of  lots  to  a  nominal  purchaser  to  show 
business,  and  such  purchaser  assigns  to  a  bona  fide  purchaser, 
who  completes  the  sale,  the  statute  of  limitations  will  run  against 
the  broker's  claim  for  commissions  as  of  the  date  of  the  'bona 
fide  sale  and  not  of  the  nominal  one.  Ross  v.  Pickling,  11  App. 
D.  C.  442.  Where  a  broker  employed  to  sell  a  contract  of  sale 
of  real  estate  at  a  profit  succeeded,  and  the  owners  of  said  con- 
tract refused  to  assign  the  same,  the  broker  was  entitled  to  com- 
missions. Levy  v.  Trimble,  94  N.  Y.  S.  3,  47  Misc.  Rep.  394. 

Sec.  29.    Attorneys  at  law. 

An  attorney  can  not  recover  full  commissions  for  purchasing 
property  for  another,  and  in  addition  recover  an  attorney's  fee 
for  defending  a  suit  involving  the  right  of  the  vendor  to  re- 
pudiate a  sale  previously  made  to  others,  as  it  devolved  on  the 
attorney  to  defeat  such  suit  in  order  to  earn  his  commissions, 
he  having  advised  the  purchasers  that  the  vendor  could  sell. 
Schomberg  v.  Anxier,  101  Ky.  292,  40  S.  W.  911,  19  Ky.  L.  R. 
548.  See  also  Sec.  248.  Where  a  client  conveyed  to  an  attorney 
an  interest  in  real  estate  as  compensation  for  securing  a  loan  for 
him,  instead  of  a  cash  fee,  the  attorney  acquired  an  equitable 
lien  thereon.  Goad  v.  Hart,  128  Cal.  197,  60  P.  761,  964. 

An  attorney  was  employed  to  sell  real  estate;  the  purchaser 
he  secured  was  one  of  his  clients,  and  was  also  president  of  a 
corporation  of  which  the  attorney  was  a  director,  and  the  con- 
tract of  purchase  was  made  for  the  benefit  of  the  said  corpora- 
tion, the  property  being  conveyed  to  it.  Held,  that  the  attorney 
sustained  a  relation  of  trust  to  both  his  client  and  the  corpora- 
tion, and  could  not  recover  commissions  on  such  sale  without 
proof  that  the  purchaser  had  knowledge  of  and  consented  to  his 
contract  for  commissions.  Nekarda  v.  Presberger,  107  N".  Y.  S. 
897,  123  App.  Div.  418;  Clark  v.  Freeport  Clays,  Products  & 
Minerals  Co,,  52  Pa.  Super.  Ct.  1,  6.  Authority  to  agents  to  em* 
ploy  attorneys  to  secure  the  right  and  title  of  the  principal  to 


THE  CONTRACT  OF  AGENCY.  71 

certain  lands,  did  not  authorize  them  to  convey  half  the  land  to 
the  attorneys  for  the  services  to  be  performed  by  them.  Blum  v. 
Robertson,  24  Cal.  128. 

Eights  of  attorney  who,  through  widow's  man  of  business,  con- 
tracted to  procure  a  purchaser  for  realty  for  usual  commission, 
were  not  affected  by  evidence  in  his  suit  for  commission  tending 
to  impeach  the  fair  dealing  of  widow's  man  of  business  with  her. 
Stieglitz  v.  Settle,  165  P.  436,  —  Cal.  Sup.  — . 

Sec.  30.    Auctions  and  auctioneers. 

A  contract  giving  an  agent  the  exclusive  right  to  find  a  pur- 
chaser for  a  farm  within  a  given  time  is  not  breached  by  a  sale 
by  the  owner  at  public  auction,  through  the  medium  of  an  auc- 
tioneer acting  under  his  immediate  direction.  Ingold  v. 
Symonds,  134  Iowa,  206,  111  N.  W.  802.  A  memorandum 
signed  by  an  auctioneer  selling  real  estate  describing  the  land 
sold  and  stating  the  terms  of  the  sale,  binds  both  buyer  and 
seller,  and  is  a  compliance  with  the  statute  of  frauds.  Garth 
v.  Davis,  27  Ky.  L.  R.  505,  85  S.  W.  692. 

Plaintiff  was  employed  by  defendant  to  advertise  his  prop- 
erty for  sale  at  auction,  to  secure  an  auctioneer  and  to  take 
charge  of  the  sale;  after  plaintiff  had  advertised  the  property 
and  secured  an  auctioneer,  but  before  the  day  of  sale,  defend- 
ant sold  the  property  privately,  and  thereupon  agreed  with 
plaintiff  to  pay  him  two  per  cent,  of  the  price  for  what  he  had 
done.  Held,  that  this  agreement  was  not  within  the  statutory 
requirement  of  a  writing  to  entitle  the  broker  to  commissions. 
Griffith  v.  Daly,  56  N.  J.  Law  (27  Vroom),  466,  29  A.  169. 

One  employed  to  arrange  for  a  sale  of  land  at  auction,  held, 
not  entitled  to  recover  commission  unless  there  was  a  sale  or  the 
production  of  some  one  able  and  willing  to  purchase  according 
to  terms  satisfactory  to  the  owners.  Sotham  v.  Macomber,  146  N. 
W.  674,  180  Mich.  120,  Ann.  Cas.  1916  C,  694. 


CHAPTER  VI. 

SECTION.  SECTION. 

31.  Architects.  35.  Trusts  and  trustees. 

32.  Abstracts  of  title.  36.  Principal  and  agent. 

33.  Meeting  of  minds.  37.  Partnership. 

34.  Executors  and   administrators. 

Sec.  31.    Architects. 

In  an  action  by  an  architect  for  compensation  for  procuring 
capitalists  ready  and  willing  to  undertake  the  construction  of 
a  hotel,  it  was  alleged  that  his  right  to  compensation  depended 
on  his  procuring  satisfactory  arrangements  for  the  erection  of 
a  hotel  on  the  land  then  owned  by  the  defendant,  that  he  pro- 
cured the  necessary  capital  to  construct  the  hotel  on  terms 
agreeable  to  defendant,  on  such  premises  and  on  premises  sub- 
sequently purchased  by  defendant.  Held,  that  complaint  al- 
leged performance  by  the  architect  of  his  contract  of  employ- 
ment and  stated  a  cause  of  action.  Lucas  v.  Smith,  98  N.  Y. 
S.  1037,  113  App.  Div.  31. 

Sec.  32.    Abstracts  of  title. 

A  real  estate  broker  employed  to  sell  land  inquired  whether 
his  principal  had  an  abstract  of  title,  and  was  told  by  her  that 
she  saw  no  necessity  for  sending  an  abstract  until  a  sale  was 
made;  on  his  securing  a  prospective  purchaser  and  requesting 
that  an  abstract  be  sent,  the  owner  forwarded  an  entire,  com- 
plete abstract,  which  the  broker  procured  to  be  extended  to 
date ;  the  sale  was  not  consummated.  Held,  that  the  broker  was 
not  entitled  to  recover  for  his  outlay  in  perfecting  the  ab- 
stract. Parks  v.  Hogle,  124  Iowa,  98,  99  N.  W.  185.  A  pur- 
chaser for  a  tract  of  land  has  no  right  to  impose  upon  the 
owner  the  obligation  to  furnish  an  abstract  of  title  when  not 
authorized  by  the  contract.  Hunt  v.  Tuttle,  133  Iowa,  647,  110 
N.  W.  1026. 

72 


THE  CONTRACT  OF  AGENCY.  73 

In  the  case  of  an  agency  contract  for  the  sale  of  land,  a  stipu- 
lation in  a  letter  written  by  third  person  to  broker  of  seller,  as 
to  terms  of  contract  of  sale,  that  seller  should  furnish  an  ab- 
stract of  title;  held,  not  sufficiently  important  to  affect  the  valid- 
ity of  a  transaction  involving  more  than  $20,000.  Edmundson  v. 
Phenix,  178  N.  W.  893,  —  Minn.  Sup.  — . 

Where  an  exchange  of  properties  was  defeated  through  in- 
sistence that  the  -purchaser  should  furnish  an  abstract  of  title, 
no  commission  was  earned  by  the  broker.  Marple  v.  Ives,  111 
Iowa,  602,  82  N.  W.  1017. 

Sec.  33.    Meeting  of  minds. 

Where  a  prospective  purchaser  insisted  upon  a  warranty  deed 
and  the  owner  would  only  quit-claim  as  to  that  part  of  the  con- 
veyance which  covered  what  was  formerly  a  street,  there  was  no 
meeting  of  minds,  and  the  broker  was  not  entitled  to  commis- 
sions. Hess  v.  Block,  107  N.  Y.  S.  86,  56  Misc.  Eep.  480.  See 
Sec.  177. 

A  broker  can  not  recover  commissions  for  finding  a  purchaser 
unless  he  brings  the  minds  of  the  owner  and  the  prospective  pur- 
chaser to  an  agreement  upon  a  sale,  price  and  terms  thereof,  and 
all  the  details  incident  to  a  sale.  Pearce  v.  Ross,  108  N.  Y.  S. 
48,  123  App.  Div.  611 ;  Cole  v.  Kosch,  102  N.  Y.  S.  14,  116  App. 
Div.  715 ;  Hess  v.  Bloch,  107  N.  Y.  Sup.  86,  56  Misc.  Eep.  480 ; 
Rosenthal  v.  Emerson  Realty  Co.,  126  N".  Y.  Sup.  85;  Hall  v. 
Olson,  114  P.  638,  58  Or.  464;  Naylor  v.  Ashton,  130  P.  181, 
20  Cal.  App.  544;  Hughes  v.  Daniel,  65  S.  518,  187  Ala.  41; 
White  v.  Ames,  179  111.  App.  220 ;  White  v.  RezeJc,  184  111.  App. 
12;  Siegel  v.  Harrington,  163  N".  Y.  Sup.  589;  Floyd  v.  Misner, 
166  N.  W.  1046,  —  Iowa  Sup.  — ;  E.  A.  Strout  Farm  Agency  v. 
De  Forrest,  183  N.  Y.  Sup.  109.  See  also  Sees.  73,  541,  Butter 
v.  Kuhner,  121  N.  Y.  S.  210.  The  same  requirement  applies  in 
the  case  of  a  lease.  Taneribaum  v.  Boehm,  111  N.  Y.  S.  185,  126 
App.  Div.  731;  Wurteriberg  v.  Bartine,  164  N.  Y.  Sup.  672; 
Weissman  v.  Mutnick,  164  N.  Y.  Sup.  825.  Where  a  broker 
produced  a  purchaser  who  refused  to  execute  a  contract,  there 
was  no  meeting  of  minds  and  the  broker  was  not  entitled  to  com- 
missions. Behrmann  T.  Marcus,  107  N".  Y.  S.  12.  See  also  Sec. 


74  AMEEICAN  LAW  REAL  ESTATE  AGENCY. 

73.  A  broker  can  not  recover  commissions  unless  the  principal 
and  the  person  procured  came  to  an  agreement  on  the  terms  of 
the  transaction,  although  the  terms  may  he  vague.  Folinsbee  v. 
Sawyer,  36  N.  Y.  S.  405,  15  Misc.  293;  Drake  v.  Biddinger,  30 
Ind.  App.  357,  66  K  B.  56;  Garcelon  v.  TiUetts,  84  Me.  148, 
24  A.  797;  Eunyan  v.  Wilkinson,  57  N".  J.  Law,  420,  31  A.  390; 
Montgomery  v.  Knickerbocker,  50  N.  Y.  S.  128,  27  App.  Div. 
117;  Guthman  v.  Meyer,  63  K  Y.  S.  971,  31  Misc.  810;  Bonner 
v.  Lenish,  60  K  Y.  S.  543,  29  Misc.  315;  Laffler  v.  Friedman, 
57  N".  Y.  S.  281,  26  Misc.  750;  Kiam  v.  Turner,  21  Tex.  Civ. 
App.  417,  52  S.  W.  1043 ;  Hand  v.  Conger,  71  Wis.  292,  37  N.  W. 
235;  Barnard  v.  Monarch,  33  How.  Pr.  (K  Y.)  440,  1  Abb. 
Dec.  108,  3  Keyes,  203;  Gardner  v.  Pierce,  116  N".  Y.  S.  155; 
W.  P.  Eae  Co.  v.  Zane,  116  K  Y.  S.  729;  Parker  v.  Lindsay, 
176  N.  W.  1018,  —  S.  D.  Sup.  — .  See  also  Sees.  73,  541. 

The  phrase  "bringing  the  seller  and  purchaser  together,"  in 
order  to  entitle  a  real  estate  broker  to  his  commissions,  does 
not  necessarily  mean  that  he  must  introduce  them  to  each  other, 
but  that,  if  his  efforts  result  in  bringing  the  minds  of  the  two 
to  an  agreement  resulting  in  the  sale  and  purchase  of  the  land, 
then,  within  the  meaning  of  the  law,  he  has  brought  them  to- 
gether. Lewis  v.  McDonald,  83  Neb.  694,  120  N.  W.  207. 

Sec.  34.    Executors  and  administrators. 

An  admission  by  an  executor,  in  an  action  for  commissions 
for  procuring  a  purchaser  of  testator's  land,  that  he  was  the 
executor  and  trustee  under  a  will  is  not  sufficient  to  show  that 
he  was  authorized  to  sell  the  land.  Guthman  v.  Meyer,  63  N. 
Y.  S.  971,  31  Misc.  810.  An  agreement  to  buy  land,  entered 
into  by  one  of  two  executors  for  himself  and  his  co-executor, 
is  not  binding,  since  the  power  of  an  executor  can  not  be  dele- 
gated. Wilson  v.  Mason,  158  111.  304,  42  N.  E.  134;  Lendon  v. 
Bidell,  78  S.  E.  410,  140  Ga.  74;  Smith  v.  Peyot,  94  N.  E.  882, 
201  N.  Y.  210;  rev.  judg.  118  N.  Y.  Sup.  1143,  134  App.  Div. 
954;  affg  judg.  116  N.  Y.  Sup.  543. 

A  promise  made  by  an  administrator  to  a  broker  to  compensate 
him  for  selling  land,  followed  by  a  sale  to  a  customer  introduced 
by  the  broker,  is  a  personal  contract  disconnected  from  the 
ownership  of  the  land  sold.  Moore  v.  Do/Her,  92  Mich.  402,  52 


THE  CONTRACT  OF  AGENCY.  75 

N.  W.  742;  Hickman-Coleman  Co.  v.  Leggett  (Cal.  App.  '09) , 
100  P.  1072. 

Where  the  owner  of  an  interest  in  a  mine  agreed  to  pay  an 
agent  a  certain  commission  for  selling  the  same,  and  a  pros- 
pective purchaser  was  secured  who  took  an  option  on  the  in- 
terest for  a  fixed  period,  the  owner  depositing  a  deed  in  escrow; 
before  the  expiration  of  the  option  the  owner  died  and  the  deed, 
on  the  failure  of  the  party  to  exercise  his  option,  was  returned 
to  the  administrator;  subsequently  the  party  who  had  held  the 
option  purchased  the  interest  from  the  administrator  for  the 
price  previously  agreed  upon.  Held,  that  the  administrator 
was  not  liable  for  the  commission  agreed  upon  in  the  contract 
made  with  the  decedent.  Trickey  v.  Crowe,  8  Ariz.  176,  71  P. 
965 ;  affirmed  204,  U.  S.  228 ;  Crow  v.  Harmon,  204  U.  S.  241 ; 
affirming  Harmon  v.  Crowe,  71  P.  1125 ;  Enyeart  v.  Figard,  38 
Pa.  Super.  Ct.  488. 

Where  an  administrator  authorized  a  broker  to  sell  decedent's 
land,  and  he  received  the  required  deposit  subject  to  return  if 
the  sale  was  not  completed,  the  relation  of  principal  and  agent 
was  established  between  the  parties  and  not  that  of  vendor  and 
purchaser,  and  therefore  the  purchaser  could  recover  the  de- 
posit from  the  administrator,  on  a  breach  of  the  specified  con- 
ditions, and  was  not  required  to  sue  the  broker.  Melone  v.  Buf- 
fino,  129  Cal.  514,  62  P.  93,  79  Am.  St.  R.  127. 

Where  a  broker  agreed  with  an  owner  of  land  to  sell  it,  and 
that  all  above  a  certain  price  should  be  divided  between  them, 
and  advised  her,  after  a  certain  time,  to  sell  below  the  price 
named,  on  the  ground  that  the  land  was  not  worth  more,  and 
effected  a  sale  after  the  death  of  the  owner,  for  her  executor, 
at  a  price  which  left  nothing  to  be  divided  under  his  agree- 
ment with  the  decedent,  a  claim  against  the  executor  for  com- 
missions could  not  be  allowed.  In  re  French's  Est.,  101  N.  Y, 
S.  734,  51  Misc.  E.  457. 

Under  a  statute  requiring  that  an  agreement  authorizing  an 
agent  to  sell  real  estate  for  a  commission  must  be  in  writing, 
a  real  estate  agent  can  not  recover  from  executors,  as  individuals, 
commissions  for  selling  property,  when  the  contract  produced 
consists  of  letters  from  one  of  the  executors  only,  which  show; 


76  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

that  he  was  acting  as  executor  and  not  individually.     Perkins 
v.  Cooper  (Cal.  Supreme  '90),  24  P.  377. 

Where  the  will  gave  the  executor  power  to  sell  land,  and  the 
executor  entered  into  a  contract  authorizing  an  agent  to  sell  a 
portion  of  the  land,  promising  him  commissions  therefor,  and 
the  agent  secured  a  purchaser  to  whom  a  conveyance  was  exe- 
cuted, the  agent  can  maintain  an  action  against  the  executor  as 
such  for  his  services.  Ingham  v.  Ryan  (Cal.  App.  '03),  71 
P.  899. 

Where  legacies  are  charged  on  real  estate  and  the  necessity 
for  a  sale  of  the  land  is  clear,  commissions  of  a  broker  upon 
such  sales  should  be  allowed  as  a  necessary  expense  of  admin- 
istration, on  appraisal  of  the  estate  for  the  transfer  tax.  In  re 
Rothschild's  Estate,  118  N.  Y.  S.  654,  63  Misc.  Eep.  615. 

Plaintiffs  and  defendant  were  engaged  in  real  estate  business 
in  the  same  office,  and  defendant  agreed  to  pay  plaintiffs  a  com- 
mission for  any  of  the  land  on  its  list  bought  or  taken  over  by 
him.  The  land  of  an  estate  listed  with  both  parties  by  an  execu- 
trix was  subsequently  advertised  and  sold  by  order  of  the  court 
and  bought  by  defendant;  held,  that  as  the  executrix  did  not 
own  and  had  no  legal  right  to  list  it,  defendant  was  not  liable 
to  plaintiffs  under  the  agreement  as  to  brokerage  fee.  Hage  v. 
M.  Sigbert  Awes  Co.,  179  N.  W.  986,  —  K  D.  Sup.  — . 

Sec.  35.    Trusts  and  Trustees. 

Defendant  brokers,  being  authorized  by  plaintiff  to  sell  land 
for  $2,300,  intrusted  the  matter  to  G,  an  employee,  who  per- 
suaded one  S  to  take  the  land  for  $2,300,  promising  that  de- 
fendants would  raise  the  money  for  him;  defendants  failed  to 
raise  the  money,  whereupon  S  begged  G  to  find  some  one  to 
take  the  contract  off  his  hands  and  save  him  the  $100  paid  to 
plaintiff;  defendants  having  then  disposed  of  part  of  the  land 
for  $600,  H,  another  employe  of  defendants,  with  knowledge 
of  the  facts,  agreed  to  take  over  the  contract,  S  to  take  another 
part  of  the  land  for  $600,  counting  in  his  $100  paid ;  these  two 
sales  for  $600  each  amounted  to  half  of  the  land;  plaintiff  not 
knowing  that  H  was  an  employe  of  defendants  gave  him  a  deed 
and  received  from  him  $2,300,  less  $200  commissions  paid  to 
defendants;  H  later  sold  the  rest  of  the  land  for  $2,100.  Held, 


THE  CONTHACT  OF  AGENCY.  77. 

that  defendants  and  H  were  guilty  of  a  legal  fraud  on  plain- 
tiff, and  must,  as  trustees,  account  to  him  for  the  profits  realized. 
Pmvers  v.  Black,  159  Pa.  St.  153,  28  A.  133. 

An  agent  who  takes  a  conveyance  in  his  own  name  will  be 
charged  as  holding  it  in  trust  for  his  principal.  Sweet  v.  Jo- 
cocks,  6  Paige  (N.  Y.),  355;  Church  v.  Sterling,  16  Conn.  388; 
PinnocJc  v.  Clough,  16  Vt.  500;  Switzer  v.  SJciles,  3  Gilm.  (111.) 
529;  Follansbee  v.  Kilbreath,  17  111.  522.  Compare  1st  Bank 
v.  Bissell,  2  McCrary  (U.  S.),  73. 

A  mortgage  note  was  given  to  a  real  estate  broker  by  the 
mortgagee  for  collection,  and  the  mortgagor  also  placed  the 
land  in  said  broker 's  hands  for  private  sale ;  a  private  sale  which 
the  broker  attempted  to  make  having  failed,  on  account  of  a 
defect  in  the  title,  and  the  mortgagor  having  ceased  to  trust 
or  rely  on  the  broker,  the  latter  had  the  property  sold  under  a 
power  in  the  mortgage,  and  it  was  bought  by  a  third  person 
not  in  privity  with  the  broker.  Held,  that  the  broker  was  not 
guilty  of  a  breach  of  trust.  Ritchie  v.  Judd,  137  111.  453,  27  N. 
E.  682.  An  agent  who  has  invested  his  principal's  money  in 
land  and  taken  the  title  in  his  own  name,  will  not  be  allowed 
to  set  up  the  statute  of  frauds  against  the  enforcement  of  the 
trust,  on  the  ground  that  the  agency  was  without  written  au- 
thority. Firestone  v.  Firestone,  49  A] a.  128. 

A  trustee  for  the  sale  of  assets  for  the  payment  of  debts  who 
purchased  them  himself  by  taking  undue  advantage  of  the  con- 
fidence reposed  in  him  by  the  plaintiff,  and  before  the  comple- 
tion of  the  contract  sold  them  at  a  highly  advanced  price,  was 
decreed  to  be  a  trustee  for  the  original  vendor  as  to  the  sums 
produced  by  such  second  sale.  Fox  v.  Mackreth,  2  Brown  Ch. 
(Eng.),  400.  "Where  plaintiff  employed  defendant  as  his  agent 
to  purchase  certain  property,  and  defendant  falsely  represented 
to  the  seller  that  it  was  necessary  that  he  should  take  the  title, 
and  wrongfully  procured  the  deed  to  be  made  in  his  own  name, 
he  held  title  as  a  trustee  ex  maleficio,  and  was  liable  at  the  suit 
of  the  plaintiff  to  be  compelled  to  convey.  Harrison  v.  Craven, 
188  Mo.  590,  87  S.  W.  962. 

A  co-agent,  under  a  power  to  sell,  is  not  bound  by  an  author- 
ized option  not  given  or  ratified  by  himself,  and  if  he  purchases 
the  land  himself  can  not  be  held  as  a  trustee  for  a  claimant 


78  AMERICAN   LAW  REAL   ESTATE   AGENCY. 

under  the  option.  Tibls  v.  Zirkle,  55  W.  Va.  49,  46  S.  E.  701, 
104  Am.  St.  R.  977.  "Where  real  estate  was  transferred  to  a 
trustee  to  hold  or  convey  the  same  as  he  thought  best,  items 
paid  real  estate  agents  and  others  as  commissions  on  sales  of 
real  estate,  which  were  shown  to  be  reasonable  commissions  for 
the  services  rendered,  were  properly  charged  against  the  trust 
estate.  BdbUtt  v.  Fidelity  Trust  Co.,  70  N.  J.  Eq.  651,  66  A. 
1076. 

If  one  who  is  clearly  the  agent  for  another  to  purchase  prop- 
erty repudiates  the  agency  and  acts  for  himself,  using  his  own 
funds,  he  can  not  be  declared  a  trustee  for  his  principal,  al- 
though the  latter  may  have  been  misled  by  the  conduct  of  the 
former.  First  Bank  v.  Bissell,  2  McCrary  (U.  S.),  73.  Compare 
Hutchison  v.  Hutchison.  4  Desau.  (S.  C.),  77.  In  the  absence 
of  a  specific  agreement  therefor,  a  broker  who  procures  a  loan 
for  the  benefit  of  a  trust  estate  has  no  lien  on  such  estate  for 
his  commission,  his  remedy  being  against  the  trustee  personally. 
Johnson  v.  Leman,  131  111.  609,  23  N.  E.  435. 

The  relations  between  an  agent  for  the  sale  of  lands  and  his 
principal  are  of  a  fiduciary  nature,  and  the  agent's  acts  in  the 
course  of  his  employment  are  governed  by  the  same  rules  as 
those  of  a  trustee.  Butler  v.  Agnew,  99  P.  395,  9  Colo.  App.  327 ; 
Coppage  v.  Howard,  96  A.  642,  127  Md.  512;  Ebert  v.  HasTcell, 
104  N.  E.  556,  217  Mass.  209. 

A  broker  in  whom  a  party  reposes  no  special  trust  or  confi- 
dence need  not,  as  a  matter  of  law,  disclose  his  agency  for  the 
other  in  order  to  be  entitled  to  a  commission.  Roseribaum  v. 
Sarasohn,  171  N.  Y.  Sup.  629. 

Where  a  broker  took  from  owners  a  deed  to  their  property  to 
enable  him  to  transfer  it  for  them  on  making  an  authorized  trade 
or  sale,  he  was  not  only  their  agent  but  held  the  property  as 
trustee  for  them,  and  could  not  purchase  himself,  nor  sell  or 
trade  for  any  property  in  which  he  was  interested  without  fully 
informing  them  and  securing  full  value.  Davenport  v.  Casey,  222 
S.  W.  791,  —  Mo.  Sup.  — . 

Sec.  36.    Principal  and  agent. 

The  relation  of  principal  and  agent  arises  out  of  contract. 
T  and  W  entered  into  an  agreement  with  0  to  sell  real  estate 


THE  CONTRACT  OP  AGENCY.  79 

for  him  within  a  certain  time,  and  before  the  expiration  of  the 
time  O  requested  the  return  of  the  agreement;  W  offered  to 
purchase  the  land  himself  rather  than  lose  the  sale.  Held,  that 
the  offer  was  not  equivalent  to  a  sale,  the  relation  between  the 
parties  was  that  of  principal  and  agent,  and  could  not,  without 
O's  consent,  be  changed  into  that  of  vendor  and  purchaser. 
Tower  v.  O'Neft,  66  Pa.  St.  332.  A  broker  who  asks  and  ob- 
tains from  the  owner  the  price  of  land,  that  alone  does  not 
establish  the  relation  of  principal  and  agent;  nor  a  contract  of 
employment.  Stephens  v.  Bailey,  149  Ala.  256,  42  S.  740;  Den- 
ton  v.  Abrams,  105  N.  Y.  S.  2,  120  App.  Div.  593.  Nor  does 
one  who  takes  an  option  to  purchase  real  estate  at  a  stated  price 
sustain  the  relation  of  agent  for  the  vendor  to  negotiate  its  sale. 
Southack  v.  Lane,  52  N.  Y.  S.  687,  23  Misc.  515,  r.  on  o.  gr.  65  N. 
Y.  S.  629,  32  Misc.  141 ;  Davenport  v.  Corbett,  98  N.  Y.  S.  403, 
112  App.  Div.  382. 

An  option  and  title  bond  taken  by  an  agent  to  insure  the 
carrying  of  a  sale  into  effect,  if  made,  does  not  change  the  re- 
lation of  principal  and  agent,  and  the  principal  remains  liable 
for  the  fraud  of  the  agent.  Alger  v.  Anderson,  78  Fed.  729. 

The  rule  that  a  sale  by  a  party  direct,  leaves  the  broker 's 
right  to  commissions  intact,  where  the  latter  has  furnished  the 
purchaser,  and  has  thus  been  the  procuring  cause  of  the  sale, 
presupposes  a  relationship  of  principal  and  agent,  and  hence, 
where  that  relationship  does  not  exist,  the  rule  does  not  apply. 
Pecos  Valley  Imp.  Co.  v.  Cecil  (N.  M.  Sup.  '09),  99  P.  695. 

In  the  absence  of  a  provision  in  the  broker's  contract  of  em- 
ployment giving  him  an  exclusive  agency,  the  principal  may  act 
independently  of  the  broker.  Auerboch  v.  International  Wolfrom 
Lampen  ATctien  Qessellachaft,  177  F.  458. 

The  rule  that  a  broker  may  collect  a  commission  from  both 
parties,  where  he  is  not  called  upon  to  exercise  his  discretion,  can 
not  be  applied  to  an  action  for  commissions,  in  the  absence  of 
proof  in  the  record  to  disclose  the  nature  of  the  agreement  or 
character  of  the  relations  between  plaintiff  and  defendant.  Swain 
v.  Whitney,  192  111.  App.  605. 

Where  a  broker  acted  for  both  parties  in  an  exchange  of  prop- 
erty, his  knowledge  of  the  true  amount  of  special  taxes  on  de- 
fendant's lots,  the  amount  of  which  defendant  had  misrepre- 


80  AMERICAN   LAW  REAL   ESTATE  AGENCY. 

sented  to  plaintiff,  was  not  notice  of  the  true  amount  to  plain- 
tiff. Woteshek  v.  Neumann,  138  N.  W.  1000,  151  Wis.  365. 

Knowledge  of  a  real  estate  agent  previously  acquired  concern- 
ing land  which  the  owner  agreed  to  accept  in  part  payment  for 
land  sold  by  the  agent,  is  not  acquired  in  the  course  of  the 
agent's  employment  so  as  to  be  imputed  to  the  owner.  Gavin  v. 
Brechler,  149  N.  W.  740,  159  Wis.  157. 

Where  a  contract  for  the  sale  of  land  provided  that  the  owner 
should  accept  other  lands  in  part  payment,  but  gave  him  the 
right  to  reject  the  land  and  recover  a  cash  payment,  if  it  was 
not  as  represented,  knowledge  of  the  owner's  agent  that  the  land 
was  not  as  represented  can  not  defeat  his  right  to  reject  the 
land.  Id. 

Knowledge  by  a  broker  for  an  exchange  of  property  of  facts 
which  he  agreed  with  the  other  party  to  conceal  from  his  prin- 
cipal is  not  imputed  to  the  principal.  Brazeau  v.  McBride,  151 
N.  W.  253,  160  Wis.  204. 

A  contract  providing  that  one  party  agrees  to  sell  lands  to  an- 
other for  a  certain  sum,  for  which  the  first  party  shall  receive  a 
stipulated  commission,  creates  the  relation  of  principal  and  agent. 
Craig  v.  Parsons,  161  P.  1117,  —  N.  M.  Sup.  — . 

Where  one  engages  another  to  find  a  purchaser  for  property, 
and  he  negotiates  a  sale,  such  person,  with  or  without  compensa- 
tion, procures  a  purchaser,  and  owner  makes  a  sale  on  terms 
reached  under  the  negotiations,  the  owner  and  the  one  procuring 
the  purchaser  stood  in  the  relation  of  principal  and  agent,  and 
agent  was  not  a  mere  middleman.  Arthur  v.  Oa.  Cotton  Co.,  96 
S.  E.  232,  —  Ga.  App.  — . 

Sec.  37.    Partnership. 

A  contract  whereby  the  obligors  bind  themselves  to  contribute 
certain  moneys  toward  the  purchase  of  land,  does  not  constitute 
them  partners  so  as  to  authorize  one  to  select  a  trustee  to  take 
the  title  and  execute  notes  for  the  purchase  price  and  a  deed  of 
trust  as  security  therefor.  Ferguson  v.  Gooch,  94  Va.  1,  26  S. 
E.  397;  Fisk  v.  Write  (Or.  Sup.  '09),  99  P.  283.  A  real  estate 
agent  can  not  be  permitted  to  form  an  arrangement  with  a  third 
party  to  purchase  the  land  of  his  principal  as  partners;  he  can 


THE  CONTRACT  OF  AGENCY.  ,         81 

not  assume  a  position  where  he  can  speculate  off  his  prin- 
cipal. Eeardon  v.  Wasliburn,  59  111.  App.  161. 

The  fact  that  the  partner  of  a  purchaser  produced  by  a  real 
estate  broker,  unknown  to  him,  attempted  to  buy  direct  from 
the  owner  and  that  the  owner  refused  to  sell  should  not  deprive 
the  broker  of  his  commissions  on  a  sale  made  to  his  customer, 
where  he  had  no  knowledge  of  the  partner's  negotiations,  and 
the  broker  acted  in  good  faith.  Hartford  v.  McGillicuddy,  103 
Me.  224,  68  A.  860.  Where  a  real  estate  agent  has  a  written 
contract  with  the  owner  of  land  to  put  it  upon  the  market,  ad- 
vertise and  sell  the  same,  having  for  his  interest  only  a  share 
in  the  surplus  profits  arising  from  the  proceeds  of  the  sale  of 
the  land.  Held,  that  the  contract  was  one  of  agency  and  not 
of  partnership.  DurJcee  v.  Gunn,  41  Kan.  496,  21  P.  637. 

Where  a  firm  of  two  members  contracted  to  manage  and  sell 
the  lots  of  a  corporation  at  a  town  other  than  that  at  which  the 
partners  resided,  the  fact  that  the  business  was  carried  on  in 
the  town  where  the  lots  were  located  by  only  one  of  the  part- 
ners was  not  a  breach  of  the  contract.  Albany  Land  Co.  v. 
Rickel,  162  Ind.  222,  70  N.  B.  158. 

The  testimony  of  one  of  two  brokers  that  the  firm  never  re- 
ceived the  alleged  letter  revoking  their  authority  is  competent 
to  show  that  neither  he  nor  his  partner  received  it.  Sayre  v. 
Wilson,  86  Ala.  151,  5  S.  157. 

Authority  conferred  on  a  partnership  to  sell  real  estate  is 
terminated  on  the  dissolution  of  the  partnership.  Larson  v. 
Newman  (N.  D.  Sup.  '09),  121  N.  W.  202;  Mechem  on  Ag.  Sec. 
221.  Compare  Sec.  637b. 

The  illegality  of  a  real  estate  firm  agreement  arising  from 
the  fact  that  it  contemplated  the  representation  by  the  firm  of 
b.oth  parties  in  the  transactions  does  not  affect  transactions 
wherein  the  firm  represented  but  one  party  and  earned  com- 
missions lawfully,  and  as  to  such  commissions  a  partner  can  not 
withhold  from  his  copartner  his  share,  on  the  ground  that  the 
firm  conducted  other  illegal  transactions.  Fryer  v.  Harker  (Iowa 
Sup.  '09),  121  N.  W.  526. 

Where  a  partnership  was  formed  between  a  broker  and  another 
to  share  commissions,  neither  the  firm  nor  the  partners  occupied 
the  status  of  innocent  purchaser  as  regards  the  rights  of  the  other 


82  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

party  to  the  contract,  but  must  accept  the  burdens  of  the  contract 
as  well  as  its  benefits.  Bauer  v.  Crow,  221  S.  W.  936,  —  Tex. 
Civ.  App.  — . 

Mutual  contribution  to  the  expense  of  an  enterprise  and  shar- 
ing the  profits  does  not  prove  a  partnership  if  everything  else 
shows  an  agency.  Hayes  v.  State,  14  Ohio  C.  C.  (N.  S.)  497, 
aff'd  w.  o.  83  0.  S.  490. 

The  use  by  a  partnership  of  the  words  "real  estate  and  note 
brokers"  in  their  letter-heads  and  office  sign,  and  in  the  city  di- 
rectory, shows  that  they  are  engaged  in  the  sale  and  purchase  of 
real  property  for  others,  rather  than  in  buying  and  selling  for 
the  firm.  Latta  v.  Kilbourn,  150  TJ.  S.  24,  4  S.  C.  201. 


CHAPTER  VII. 

SECTION.  SECTION. 

38.  Corporations.  40.     The  vendor. 

39.  Husband  and  wife.  41.     The  vendee  or  purchaser. 

Sec.  38.    Corporations. 

Where  defendants,  who  were  two  of  the  officers  of  a  cor- 
poration, employed  plaintiff  to  sell  the  corporate  assets  for  a 
certain  price,  and  he  procured  a  purchaser,  ready,  willing  and 
able  to  purchase  at  that  price,  it  was  no  defense  to  an  action 
brought  to  recover  commissions  that  plaintiff  knew  that  defend- 
ants did  not  own  a  majority  of  the  stock  of  the  corporation, 
and  that  plaintiff  did  not  procure  a  ratification  of  the  trans- 
action by  the  stockholders.  Norman  v.  Hopper,  38  Wash.  415, 
80  P.  551;  Lawson  v.  Black  Diamond  Coal  Mining  Co.  (Wash. 
Sup.  '09),  102  P.  759. 

In  an  action  by  a  real  estate  broker  for  commissions,  evi- 
dence held  insufficient  to  show  that  the  share  holders  of  the 
association  which  owned  the  real  estate  ever  authorized  the  offi- 
cers thereof  to  list  the  real  estate  with  plaintiff  for  sale,  or 
ratified  the  same.  Spottswood  v.  Morris,  12  Idaho,  360,  85  P. 
1094,  6  L.  R,  A.  (N.  S.)  665. 

The  treasurer  of  a  charitable  corporation,  without  authority, 
took  railroad  bonds  registered  in  the  name  of  the  corporation 
to  a  broker  for  sale,  the  broker  refused  to  handle  the  bonds 
unless  they  were  made  transferable  to  bearer  by  the  legal  trans- 
fer agent  of  the  railroad  company;  the  transfer  agent  required 
from  the  corporation  a  copy  of  a  resolution  of  its  directors 
authorizing  the  transfer  and  a  power  of  Attorney  to  make  it; 
the .  treasurer  drew  up  a  resolution  of  authority  and  forged 
thereto  the  signatures  of  the  officers  and  the  seal  of  the  cor- 
poration, and  also  forged  a  power  of  attorney;  the  transfer 
agent  thereupon,  in  good  faith,  made  the  transfer  and  the  broker 

83 


84  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

sold  the  bonds.  Held,  that  the  broker  and  the  railroad  com- 
pany were  liable  to  the  corporation  for  the  value  of  the  bonds, 
though  both  acted  in  good  faith,  and  the  corporation  may  re- 
cover from  either.  Jennie  Clark-son  Home  for  Children  v.  R. 
R.  Co.,  87  N.  Y.  S.  348,  1137,  1138,  92  App.  Div.  491,  618,  617, 
74  N.  E.  571,  1118,  182  N.  Y.  47,  507,  70  L.  R.  A.  787. 

Under  the  laws  of  Pennsylvania  a  corporation,  in  order  to 
lawfully  engage  in  the  business  of  buying  and  selling  real  estate 
for  others,  must  pay  a  license  tax  or  fee  to  the  commonwealth. 
Commonwealth  v.  Sam.  W.  Black,  34  Pa.  Super.  Ct.  431.  A 
broker  sustaining  a  relation  of  trust  to  a  purchasing  corpora- 
tion could  not  recover  a  commission  for  effecting  a  sale  of  real 
estate  to  it,  without  proof  that  the  purchaser  had  knowledge 
of  and  consented  to  his  contract  for  commissions.  Steel  v.  Law- 
yer, 47  Wash.  266,  91  P.  958;  Nekarda  v.  Presberger,  107  N. 
Y.  S.  897,  123  App.  Div.  418. 

A  person  dealing  with  an  officer  of  a  corporation  in  a  matter 
concerning  which  the  corporation  has  power  to  act  is  not  bound 
to  know  the  limits  of  the  officer's  authority  to  act  for  the 
corporation.  Groeltz  v.  Armstrong,  125  Iowa,  39,  99  N.  W.  128. 
A  written  contract  may  be  entered  into  by  a  corporation,  with- 
out formal  vote  or  written  entry  thereof,  by  its  directors,  where 
they  are  all  present  and  assent  thereto.  Indiana  Bermudez  Asp. 
Co.  v.  Robinson,  29  Ind.  App.  59,  63  N.  E.  797. 

A  corporation  organized  for  the  purpose  of  buying  land  and 
selling  it  out  in  lots,  is  not  bound  by  a  contract  between  the 
president  and  the  secretary  by  which  the  latter  was  to  have 
a  certain  commission  on  "each  lot  sold  for  the  company,"  de- 
fendant is  liable  only  for  a  reasonable  commission  on  the  amount 
actually  received  from  such  sales,  the  officers  making  the  con- 
tract both  being  directors.  Louisville  Bdg.  Assn.  v.  Hegan,  20 
Ky.  L.  R.  1629,  49  S.  W.  796.  Where,  by  a  contract  in  regard 
to  the  sale  of  property,  a  broker  arranged  with  all  the  parties 
that  his  compensation  should  be  paid  in  certain  stock  of  a  com- 
pany to  be  formed  by  him  and  others  to  buy  the  land,  he  can 
not  hold  the  vendors  responsible  for  such  compensation.  Bowles 
v.  Allen,  21  S.  E.  (Va.)  665.  Where  defendant  in  his  negotia- 
tions with  .a  broker  did  not  purport  to  bind  himself  individually, 
but  purported  to  bind  a  corporation  of  which  he  was  the  pres- 


THE  CONTRACT  OF  AGENCY.  85 

ident,  no  recovery  can  be  had  against  him  for  commissions. 
Groeltz  v.  Armstrong,  125  Iowa,  39,  99  N.  W.  128. 

The  fact  that  a  broker  employed  to  effect  a  sale  is  a  director 
in  the  corporation  which  he  procures  to  buy  the  property  does 
not  prevent  him  from  recovering  commissions,  where  the  per- 
son who  practically  owns  the  capital  stock  of  the  corporation 
consents  to  the  transaction,  the  question  of  fair  dealing  being 
submitted  to  the  jury.  Goldshen  v.  Barrow,  85  N.  Y.  S.  395, 
42  Misc.  198.  Compare  Investment  Co.  v.  Ater,  49  Wash.  446, 
95  P.  1017.  In  an  action  brought  by  a  broker  against  a  cor- 
poration to  recover  commissions,  he  must  establish  his  employ- 
ment by  one  authorized  to  bind  the  corporation,  or  prove  a 
subsequent  knowledge  of,  adoption  and  ratification  of  his  em- 
ployment by  the  corporation.  Twelfth  St.  Market  Co.  v.  Jack- 
son, 102  Pa.  St.  269;  Cohn  v.  James  McCreary  Realty  Co,'.,  92 
N.  Y.  S.  143,  102  App.  Div.  611. 

The  obligation  of  a  party  contracting  to  pay  a  real  estate 
broker  a  specified  sum  when  he  sells  certain  property  for  a  speci- 
fied sum,  or  any  other  price  he  may  accept,  matures  only  when 
he  disposes  of  the  property  for  a  money  consideration,  or  on  an 
actual  alienation  thereof  for  cash  or  its  equivalent,  and  a  mere 
conveyance  of  the  property  to  a  corporation  organized  to  take 
and  hold  the  same,  the  respective  interests  of  the  owners  being 
thereafter  represented  by  stock  in  the  corporation,  is  not  a  "sale" 
which  is  a  transfer  for  a  valuable  consideration.  Good  v.  Erker, 
153  S.  W.  556,  170  Mo.  App.  681. 

Where  a  broker  was  employed  to  sell  real  estate  to  a  third 
person  for  whom  the  obtained  an  option  to  purchase,  and  the 
owner,  after  the  expiration  of  the  option  and  of  a  subsequent  op- 
tion, sold  the  property  to  a  corporation  organized  by  the  third 
person,  who  practically  owned  all  of  the  stock,  the  jury  could  find 
that  the  sale  was  equivalent  to  a  sale  to  the  third  person,  so  that 
the  broker  could  recover.  Cole  v.  Crump,  156  S.  W.  769,  174 
Mo.  App.  215. 

Where  defendant,  who  employed  a  broker  to  procure  a  tenant 
for  corporate  property,  owned  all  the  stock  of  the  corporation, 
and  stated  to  the  broker  that  he  individually  owned  the  property, 
and  that  the  execution  of  the  lease  in  the  corporate  name  was  for 
the  purpose  of  affording  protection  against  personal  liability, 


86  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

defendant  was  personally  liable  to  the  broker  for  his  commission. 
Rutz  v.  Olear,  115  P.  67,  15  Cal.  App.  435. 

Plaintiff  having  employed  and  paid  a  real  estate  agent  to  se- 
cure a  tenant,  is  chargeable  with  the  knowledge  possessed  by  the 
agent  that  the  tenant  was  engaged  in  business,  and  was  contract- 
ing in  a  corporate  capacity  and  not  as  a  partnership.  Tulane 
Imp.  Co.  v.  8.  A.  Chapman  &  Co.,  56  S.  509,  129  La.  562. 

A  corporation  for  the  purpose  of  transacting  the  business  of 
real  estate  brokerage  can  not  be  organized  under  any  existing 
statute  of  this  state..  Warren  v.  Interstate  Realty  Co.,  192  111. 
App.  438. 

Since  a  corporation  for  the  purpose  of  transacting  the  business 
of  real  estate  brokerage  may  not  be  organized  under  and  existing 
statute  of  this  state  under  Foreign  Corporation  Act  1905,  sec.  2, 
a  foreign  corporation  can  not  be  authorized  to  do  business  in 
this  state.  Id. 

A  stockholder  owning  a  large  part  of  the  corporate  stock  is 
not  liable  for  a  broker's  commission  on  his  agreement  for  sale 
of  the  corporation's  lands,  which  was  invalid  because  resting  in 
parol,  in  contravention  of  Civil  Code,  sec.  1624,  on  the  theory 
that  it  was  an  agreement  between  him  and  the  broker  to  share 
an  advantage,  where  there  was  no  evidence  that  the  land  was  not 
worth  the  selling  price,  though  the  purchaser's  first  payment  was 
forfeited  to  the  stockholders'  advantage,  since  plaintiff's  rights 
were  based  on  facts  existing  when  making  the  broker's  agreement, 
or  at  least  not  later  than  purchaser's  first  payment.  Eaton  v. 
Yount,  191  P.  1009,  —  Cal.  App.  — . 

Sec.  39.    Husband  and  wife. 

One  who  negotiates  a  sale  of  land  belonging  to  a  husband 
and  wife  can  not  recover  of  the  husband  compensation  for  sell- 
ing the  wife's  interest  in  the  land,  unless  the  husband  agreev 
to  pay  therefor.  Spangeman  v.  Palestine  Bldg.  Assn.,  60  N.  J. 
L.  357,  37  A.  723 ;  Hansbrough  v.  Neal,  94  Va.  722,  27  S.  E.  593. 
It  does  not  follow  that  because  the  husband  has  charge  of  the 
wife's  property  and  has  authority  to  sell  the  same,  that  he  is 
authorized  to  employ  another  to  procure  a  purchaser.  Groscup 
v.  Downey,  105  Md.  273,  65  A.  930.  See  also  Sec.  1022. 

A  husband  undertaking  to  be  bound  for  the  commissions  of 


THE  CONTRACT  OF  AGENCY.  87 

the  broker  for  effecting  a  sale  of  real  estate  for  his  wife,  is 
personally  bound  whether  he  discloses  his  agency  for  his  wife 
or  not.  Jarvis  v.  Schaefer,  105  N.  Y.  289,  11  N.  E.  634;  Cofield 
v.  McGraw  &  Gardner,  77  S.  981,  —  Ala.  App.  — . 

In  an  action  for  commissions  on  a  sale  of  land  belonging  to 
defendant,  it  appeared  that  plaintiff  had  sold  other  land  for 
defendant  and  her  husband  several  years  before,  and  that  this 
property  was  left  in  plaintiff's  hand  to  sell  for  $50,000,  and 
that  the  price  was  raised  until  finally  plaintiff  obtained  an  offer 
of  $65,000,  which  was  reported  to  defendant  and  her  hus- 
band, and  which  each  agreed  to  accept — the  husband  got  on 
abstract  of  title  and  the  purchaser  placed  checks  with  the  plain- 
tiff to  bind  the  bargain — but  when  the  time  came  for  closing 
the  sale  defendant  declined  to  execute  the  deed.  Held,  that 
there  was  evidence  to  go  to  the  jury  as  to  the  plaintiff's  em- 
ployment by  the  defendant  or  by  the  husband  as  her  agent. 
Codd  v.  Seitz,  94  Mich.  191,  53  N.  W.  1057 ;  Sims  v.  Rockwell, 
156  Mass.  372,  31  N.  E.  484.  The  refusal  of  the  wife  to  join 
with  the  husband  in  a  deed  of  conveyance  does  not  protect 
the  principal  from  liability  for  the  commission  earned  by  the 
broker  in  procuring  a  purchaser.  Tebo  v.  Mitchell,  5  Pennewill 
(Del.),  356,  63  A.  327;  Hamlin  v.  ScMte,  34  Minn.  534,  27 
N.  W.  301 ;  Goldberg  v.  Gelles,  68  N.  Y.  S.  400,  33  Misc.  797 ; 
Clapp  v.  Hughes,  1  Phila.  (Pa.)  382. 

A  man  is  not  bound  by  a  contract  for  the  sale  of  his  land 
made  by  a  broker  in  accordance  with  letters  and  a  telegram 
sent  by  his  wife,  who,  although  attending  to  his  correspondence 
and  the  renting  of  his  property,  had  no  written  authority  to 
contract  for  him,  and  who  sent  the  letters  and  telegram  in 
question  without  informing  him  of  their  contents.  Edwards  v. 
Tyler,  141  .111.  454,  31  N.  E.  312.  To  sustain  an  action  for 
commissions  a  broker  must  show  a  direct  employment  by  the 
principal,  or  a  direct  authority  for  him  to  treat  with  the  agent 
of  the  principal;  if  the  wife  for  her  husband  be  relied  upon 
special  authority  or  ratification  must  be  shown.  Harper  v. 
Goodall,  62  How.  Pr.  (N.  Y.)  288,  10  Abb.  N.  Gas.  161;  Harrell 
v.  Veith,  13  N.  Y.  St.  738.  The  same  rule  applies  in  the  case 
of  a  wife's  property.  Hurd  v.  Lee,  116  N.  Y.  S.  445.  Where 
one  employs  a  real  estate  broker  to  find  a  buyer  for  land,  which 


88  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

he  occupies  with  his  wife  as  a  homestead,  and  the  broker  pro- 
duces a  purchaser  ready  and  willing  to  take  the  property,  the 
broker's  claim  for  compensation  is  not  defeated  by  the  fact  that 
the  sale  is  prevented  by  the  refusal  of  the  wife  to  execute  a 
conveyance.  Branch  v.  Moore,  84  Ark.  462,  105  S.  W.  1178; 
Staley  v.  Huffard,  73  Kan.  686.  85  P.  763 ;  Carey  v.  Whitman, 

110  Mo.  App.  204,  84  S.  W.  1131 ;  Young  v.  Ruhwedel,  119  Mo. 
App.  231,  96  S.  "W.  228;  Kepner  v.  Ford   (N.  D.  Sup.    '07), 

111  N.  W.  619. 

The  same  is  true  of  the  sale  of  other  property  in  which  the 
wife  refuses  to  relinquish  her  right  of  dower.  Cook  v.  Fryer, 
3  Ky.  L.  E.  (abst.)  612.  Also,  where  the  wife  refused  to  sign 
the  deed  unless  given  half  the  proceeds  of  sale,  with  which 
demand  the  husband  would  not  comply.  Marlin  v.  Sipprell, 
93  Minn.  271,  101  N.  W.  169.  The  defendant,  without  au- 
thority from  his  wife,  employed  plaintiff  as  a  broker  to  sell 
her  real  estate,  but  the  written  authorization  to  offer  the  prop- 
erty for  sale  was  not  signed  by  the  wife  or  her  attorney  in 
fact,  as  required  by  the  statute.  Held,  that  as  plaintiff  could 
not  have  recovered  against  the  wife  by  virtue  of  such  invalid 
writing,  even  if  defendant  had  had  authority  to  place  the  prop- 
erty for  sale,  defendant  was  not  individually  liable  for  the 
breach  of  an  implied  warranty  of  authority.  Hochbaum  v. 
Rotter,  101  N.  Y.  S.  531. 

A  married  woman,  under  the  statutes  of  Indiana,  has  power 
to  bind  herself  for  the  payment  of  a  broker's  services  rendered 
in  the  sale  of  her  real  estate.  Ispherding  v.  Wolf,  36  Ind.  App. 
250,  75  N.  E.  598.  A  married  woman,  without  separate  es- 
tate, who  in  1892  bought  a  farm,  took  title  to  it,  enjoyed  its 
fruits  for  seven  years,  and  then  sold  it  and  received  the  pur- 
chase money,  can  not  escape  liability  upon  her  written  promise 
to  pay  for  the  land  and  the  personal  property  which  was  ap- 
pended thereto,  on  the  ground  that  the  obligation  was  not 
binding  upon  her,  and  that,  without  any  offer  to  return  either 
the  property  or  the  proceeds  of  the  sale.  Crosby  v.  Waiters, 
28  Pa.  Super.  Ct.  559. 


THE  CONTEACT  OP  AGENCY.  89 

Sec.  40.    The  vendor. 

Where  a  broker  is  employed  to  sell  real  estate  he  is  the  agent 
of  the  vendor.  Gough  v.  Loomis,  123  Iowa,  642,  99  N.  W.  295; 
Earp  v.  Cummins,  54  Pa.  St.  394.  If  the  vendor  secretly  pays 
a  commission  to  the  purchaser's  broker,  the  purchaser  has  a 
right  of  action  against  the  vendor  to  recover  the  amount  there- 
of. Grant  v.  Gold  Ex.  Syn.  1  Q.  B.  (Eng.)  233,  69  L.  J.  Q.  B. 
150,  82  L.  T.  R.  N.  S.  5,  48  Weekly  Kep.  280.  See  Sec.  401. 

Where,  through  the  misrepresentation  of  the  vendor,  inno- 
cently repeated  by  the  broker  to  the  prospective  purchaser,  and 
the  falsity  of  which,  being  discovered,  defeated  the  sale,  the 
broker  was  held  not  entitled  to  his  commission,  for  had  it  not 
been  for  the  misrepresentation  the  prospective  purchaser  would 
not  have  entered  into  the  agreement.  Crockett  v.  Grayson,  98 
Va.  354,  36  S.  E.  477.  Contra,  Goodman  v.  Hess,  107  N.  Y.  S. 
112,  56  Misc.  482.  Where  it  appears  that  a  real  estate  agent 
employed  to  sell  land  had  acted  in  similar  transactions  for  the 
vendor,  that  after  making  the  sale  the  agent  was  active  in 
assisting  the  vendee's  agent  in  clearing  up  some  defects  in  the 
title,  that  he  filled  up  a  deed  and  carried  it  to  the  vendor  to 
sign,  and  then  took  it  away,  without  objection  on  the  part  of 
the  vendor,  delivered  it  to  the  vendee's  agent,  and  received  the 
purchase  money,  which  he  appropriated  to  his  own  use,  and 
the  vendor  subsequently  admitted  to  disinterested  persons  that 
she  had  authorized  the  agent  to  collect  the  money,  the  loss 
thereof  must  fall  on  the  vendor,  under  whose  authority  the  agent 
acted.  Frank  v.  Levy,  10  Ohio  Cir.  Ct.  R.  554.  Compare  Rhode 
v.  Marquis,  135  Mich.  48,  97  N.  W.  53.  Where  a  broker  acts 
openly  and  himself  buys  the  property,  the  vendor  accepting 
him  as  such,  he  is  entitled  to  recover  commissions  for  the  sale, 
upon  clear  proof  that  such  was  the  understanding  of  the  vendor 
at  the  time  of  the  sale.  Grant  v.  Hardy,  33  Wis.  668.  Compare 
Sees.  389,  389a. 

A  real  estate  agent  employed  to  buy  certain  property  at  a 
certain  price,  does  not  forfeit  the  commission  which  the  pur- 
chaser agreed  to  pay  him,  because  he  secured  another  commis- 
sion from  the  vendor  after  the  vendor  had  accepted  the  terms 
offered.  Jones  v.  Henry,  36  N.  Y.  S.  483,  15  Misc.  151.  A 


90  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

contract  to  pay  real  estate  agents  commissions  for  their  ser- 
vices in  endeavoring  to  effect  a  sale,  entitles  the  agents  to  com- 
missions if  they  produce  a  purchaser  to  whom  the  vendor  in 
fact  sells.  Bowe  v.  Gage,  127  Wis.  245,  106  N.  W.  1074,  115 
'Am.  St.  K.  1010.  An  innocent  vendor  can  not  be  sued  in  tort 
for  the  fraud  of  his  agent  in  effecting  a  sale;  in  such  case  the 
vendee  may  rescind  the  contract  and  reclaim  the  money  paid, 
and  if  not  repaid,  may  sue  the  vendor  in  assumpsit  for  it,  or 
he  may  sue  the  agent  for  the  deceit.  Kennedy  v.  McKay,  43 
N.  J.  L.  288. 

Where  a  broker  procured  a  purchaser  for  the  land  sold  by 
taking  another  piece  of  land  for  a  part  of  the  price,  and  these 
terms  were  accepted  by  the  vendor,  the  transaction  was  a  sale, 
and  entitled  the  broker  to  the  performance  of  the  vendor's  con- 
tract to  allow  him  all  over  a  specified  amount  that  he  could 
get  for  the  land.  TfTlman  v.  Land,  37  Tex.  Civ.  App.  422,  84 
S.  W.  294;  Thornton  v.  Woody  (Tex.  Civ.  App.  '93),  24  S.  W. 
331.  See  also  Sees.  121,  164.  A  purchaser  contracted  to  buy 
land  and  agreed  to  pay  one-third  cash;  the  sale  was  not  made. 
Held,  that  the  broker,  in  order  to  recover  his  commissions,  was 
not  required  to  prove  that  the  purchaser  was  of  such  financial 
responsibility  that  his  notes  for  the  balance  would  have  been 
good,  irrespective  of  a  vendor's  lien,  the  contract  employing 
the  broker  not  stipulating  that  the  purchaser  should  have  such 
financial  responsibility.  Clark  v.  Wilson,  41  Tex.  Civ.  App. 
450,  91  S.  W.  627.  A  vendor  may,  if  he  is  doubtful  of  the 
proposed  vendee's  ability  to  carry  out  his  contract  of  pur- 
chase, accept  the  contract  conditionally,  and  agree  to  sell,  pro- 
vided the  purchaser  proves  able  to  perform  its  condition.  Flynn 
v.  Jordal,  124  Iowa,  457,  100  N.  W.  326.  A  broker  for  a  pur- 
chaser of  real  estate  can  not  call  upon  his  employer  to  go  to 
the  place  of  business  of  the  vendor,  and  there  make  the  con- 
tract or  negotiate  for  its  terms.  Logan  v.  McMullen,  4  Cal. 
App.  154,  87  P.  285. 

Sec.  41.    The  vendee  or  purchaser. 

Where  a  broker  is  employed  to  buy  real  estate  he  is  the 
agent  of  the  vendee.  Marsh  v.  Buchan,  46  N.  J.  Eq.  595,  22  A. 


THE  CONTRACT  OF  AGENCY.  91 

128.  "Where  a  vendor  under  a  contract  for  the  sale  of  lands, 
which  is  within  the  statute  of  frauds  because  not  in  writing, 
is  nevertheless  willing  and  offers  to  perform  on  his  part,  but 
the  vendee  refuses  to  fulfill  and  repudiates  the  contract,  the 
latter  is  not  entitled  to  recover  any  installments  of  purchase 
money  paid.  McKinne  v.  Harvie,  38  Minn.  18,  35  N.  W.  668. 
Where  an  agent  is  authorized  to  sell  and  convey  lands,  and  en- 
ters into  a  contract  with  the  vendee,  his  receipts  bind  the  prin- 
cipal. Peck  v.  Harriott,  6  Serg.  &  R.  (Pa.)  146. 

The  owner  of  land  authorized  a  broker  to  make  a  sale  there- 
of, "commissions  to  be  paid  out  of  payments  as  made,"  and  a 
letter  in  setting  forth  the  terms  of  the  sale  provided  that  on. 
default  by  the  purchaser  all  prior  payments  should  be  forfeited 
and  neither  party  have  any  claims  on  the  other;  the  broker 
found  a  purchaser,  who  gave  a  deed  of  trust  to  secure  the  pay- 
ments and  subsequently  defaulted;  thereafter,  the  vendor  re- 
leased the  vendee  from  his  obligations  and  conveyed  to  another, 
and  the  broker  sued  for  commissions  on  the  entire  price.  Held, 
that  the  contract  between  the  parties  did  not  entitle  the  broker 
to  commissions  except  on  those  payments  actually  made  by  the 
vendee.  Murray  v.  Rickard,  103  Va.  132,  48  S.  E.  871.  Com- 
pare Seymour  v.  St.  Luke's  Hospital,  50  N.  Y.  S.  989,  28  App. 
Div.  119. 

A  vendee,  defrauded  by  the  agent  of  the  vendor,  may  re- 
scind the  contract  and  reclaim  the  money  paid,  and  if  not  re- 
paid may  sue  the  vendor  in  assumpsit  for  it,  or  he  may  sue  the 
agent  for  the  deceit.  Kennedy  v.  McKay,  43  N.  J.  L.  288; 
Farris  v.  Wilder  (Tex.  Civ.  App.  '09),  115  S.  W.  645.  Where 
the  vendee  knows  that  the  vendor  is  a  broker,  and  though  there 
is  reason  to  believe  he  is  selling  the  property  for  some  prin- 
cipal, yet  if  he  does  not  see  fit  to  bind  his  principal  by  the 
form  of  the  contract  made,  by  contracting  in  his  own  name, 
he  may  become  liable  as  a  vendor.  Scaling  v.  Knollin,  94  111. 
App.  443.  A  broker  to  purchase  real  estate  for  a  vendee  can 
not  call  on  his  principal  to  go  to  the  place  of  business  of  the 
vendor  to  make  the  contract  or  negotiate  as  to  its  terms.  Logan 
v.  McMullen,  4  Cal.  App.  154,  87  P.  285.  If  the  contract  re- 
quires the  price  to  be  paid  in  cash,  the  purchaser  must  have 
the  cash  at  the  time  available  for  the  purpose.  N eiderla/nder 


92  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

v.  Starr,  50  Kan.  766,  32  P.  359;  Waiters  v.  Dancy,  (S.  D. 
Sup.  '09),  122  N.  W.  430.  It  is  not  sufficient  that  the  purchaser 
has  property  from  which  the  price  might  be  realized  by  suit. 
Dent  v.  Powell,  93  Iowa,  711,  61  N.  W.  1043. 

If  at  the  time  of  signing  the  contract  the  purchaser  is  ready 
to  make  the  payment  then  due,  the  broker  is  not  required  to 
show  that  he  has  funds  available  to  make  the  final  payment. 
Levy  v.  Ruff,  23  N.  Y.  S.  1002,  4  Misc.  180.  Mere  insolvency 
of  the  purchaser  does  not  defeat  the  broker's  right  to  commis- 
sions where  the  sale  contemplated  being  secured  by  a  bond  and 
deed  of  trust,  which  the  purchaser  is  prepared  to  deliver.  Ross 
v.  Fielding,  11  App.  Cas.  (D.  C.)  442.  The  fact  that  the  pur- 
chaser procured  was  representing  a  concealed  principal  does 
not  affect  the  broker's  right  to  commissions,  if  the  produced 
purchaser  was  able,  ready  and  willing  to  buy  on  the  terms  au- 
thorized by  the  principal  and  no  binding  written  contract  of 
sale  is  required.  Gellott  v.  Ridge,  117  Mo.  553,  23  S.  W.  882. 

"Where  land  is  intrusted  to  a  broker  to  sell  and  collect  the 
purchase  money,  a  purchaser  is  entitled  to  credit  for  payments 
made  to  the  broker  before  the  receipt  by  the  purchaser  of  a 
notice  of  the  withdrawal  of  the  broker's  authority.  Meeker  v. 
Mannin,  162  111.  203,  44  N.  E.  397 ;  Lawler  v.  Armstrong  (Wash. 
Sup.  '09),  102  P.  775.  A  purchaser  who  makes  a  parol  con- 
tract and  repudiates  it  before  it  is  reduced  to  writing,  bars  the 
right  of  the  broker  to  recover  commissions.  Gilchrist  v.  Clarke, 
86  Tenn.  583,  8  S.  W.  572;  Sloman  v.  Bodwcll,  24  Neb.  790, 
40  N.  W.  321.  A  purchaser  buying  real  estate  of  an  agent 
must,  at  his  peril,  ascertain  the  extent  of  the  agent's  powers. 
MUne  v.  Kiel,  14  A.  646,  810,  44  N.  J.  Eq.  378.  See  also  Sec.  18. 
After  concluding  the  contract  of  sale  a  broker  may  become 
the  agent  of  the  purchaser,  when  he  puts  money  into  the  hands 
of  said  agent  to  pay  for  the  land.  Small  v.  Collins,  6  Houst. 
(Del.)  273. 

A  complaint  in  an  action  to  recover  a  real  estate  broker's 
commission  is  not  demurrable  because  of  failure  to  allege  that 
the  agent  disclosed  to  defendant  the  identity  of  the  purchaser, 
where  it  does  not  appear  that  he  refused  to  do  so,  or  that  the 
defendant  made  demand  therefor,  or  suffered  any  injury  from 
the  fact  of  concealment.  Bertleson  v.  Hoffman,  35  Wash.  459, 


THE  CONTRACT  OF  AGENCY.  93 

77  P.  801.  A  broker  who  conceals  the  name  of  the  real  pur- 
chaser, and  puts  forward  a  fictitious  purchaser,  commits  a  legal 
fraud  and  can  not  recover  commissions.  Pratt  v.  Patterson,  12 
Phila.  (Pa.)  460,  112  Pa.  St.  475.  An  owner  of  real  estate 
who  offers  to  pay  a  certain  sum  to  another  if  he  finds  a  pur- 
chaser at  a  named  price,  may.  nevertheless,  sell  the  property 
himself,  at  any  time  before  the  other  has  acted  upon  the  offer 
and  secured  a  purchaser,  and  securing  a  party  who  will  pur- 
chase on  different  terms  from  those  proposed  by  the  owner  in 
his  offer  is  not  securing  a  purchaser  within  the  meaning  of 
the  contract  so  as  to  entitle  the  broker  to  a  commission.  Darrow 
v.  Harlow,  21  Wis.  306. 

A  land  agent  is  not  entitled  to  commissions  or  compensation 
for  procuring  a  purchaser  of  a  plantation,  when  it  is  shown 
that  the  intended  purchaser  declined  to  complete  the  contract, 
without  fault  or  negligence  on  the  part  of  the  principal,  on 
account  of  a  supposed  defect  in  the  title.  Blankenship  v.  Ryer- 
son,  50  Ala.  426.  Where  a  real  estate  agent,  for  an  agreed 
compensation,  undertakes  to  find  a  purchaser  satisfactory  to  the 
owner,  he  alone  has  the  right  to  determine  the  consideration 
for  which  he  will  sell  and  the  details  governing  the  payments. 
Kilham  v.  Wilson,  112  Fed.  565,  50  C.  C.  A.  108. 

An  agreement  between  the  owner  of  real  estate  and  an  agent 
whereby  the  latter  was  appointed  to  collect  rents,  make  neces- 
sary improvements,  keep  the  property  insured,  pay  the  taxes 
and  the  expenses  that  might  become  necessary  with  a  view  to 
procuring  purchasers,  and  to  receive  for  compensation  a  spec- 
ified per  cent,  of  the  amount  collected,  did  not  constitute  him 
an  agent  with  authority  to  procure  a  purchaser  of  the  prop- 
erty. Heim  v.  Ashton,  121  Iowa,  265,  96  N.  W.  745. 

A  contract  made  by  a  broker  to  procure,  for  a  compensation, 
certain  property  for  a  purchaser,  is  not  within  the  statute  for 
offering  real  estate  for  sale,  requiring  that  the  broker  should 
have  written  authority  from  the  owner  of  the  property.  Fried- 
man v.  Buitker,  91  N.  Y.  S.  896,  45  Misc.  178. 

Where  a  land-owner  employed  the  plaintiff  to  find  a  pur- 
chaser on  terms  whereby  a  certain  cash  payment  was  to  be 
made  and  a  mortgage  given,  and  on  producing  the  proposed 
purchaser  the  plaintiff  offered  to  pay  the  whole  of  the  pur- 


94  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

chase  money,  if  the  land-owner  was  not  satisfied  with  the  pur- 
chaser's ability  to  make  the  deferred  payments  when  they  fell 
due,  it  was  held  that  such  offer  did  not  remove  the  objection 
of  inability  of  the  purchaser  to  perform  the  contract,  as  it 
amounted  to  a  proposal  to  vary  the  terms  of  the  proposed  sale. 
Young  v.  Ruhwedel,  119  Mo.  App.  231,  96  S.  W.  228.  Compare 
Eicke  v.  Post,  110  N.  Y.  S.  79,  125  App.  Div.  607. 

So,  where  a  broker  sought  to  recover  commissions  for  finding 
a  purchaser  for  defendant's  real  estate,  a  showing  on  the 
part  of  plaintiff  that  he  produced  a  person  willing  to  take  the 
property  at  defendant's  price,  on  condition  that  the  plaintiff 
furnished  or  procured  the  necessary  money,  and  that  plaintiff 
had  promise  of  a  loan  to  enable  him  to  do  so,  did  not  show 
performance  on  the  part  of  plaintiff.  McCune  v.  Badger,  126 
Wis.  186,  105  N.  W.  667. 

Where  a  broker  made  active  efforts  to  effect  a  purchase  for 
his  employer,  but  another  broker  first  procured  a  satisfactory 
offer  of  sale,  the  first  broker  was  not  entitled  to  any  commis- 
sions. Friedman  v.  Polstein,  97  N.  Y.  S.  1032,  49  Misc.  644. 
In  the  absence  of  a  special  contract  a  broker  is  not  entitled 
to  a  commission  on  merely  bringing  a  purchaser,  who  was 
ready,  willing  and  able  to  pay  the  price  demanded,  where  no 
sale  was  made,  because  of  a  disagreement  as  to  when  the  trans- 
fer should  take  place.  Haase  v.  Schneider,  98  N.  Y.  S.  587, 
112  App.  Div.  336.  See  also  Sec.  33. 

A  real  estate  agent  does  not  produce  purchasers  willing  to 
execute  the  contract  on  the  terms  prescribed  so  as  to  be  en- 
titled to  a  commission,  where  they  insist  upon  more  onerous 
terms  than  those  originally  agreed  upon,  and  on  denial  thereof 
refuse  to  buy.  Weiss  v.  Robinson,  98  N.  Y.  S.  429,  112  App. 
Div.  276.  See  also  Sec.  33. 

In  an  action  by  a  broker  for  commissions  for  procuring  a 
purchaser,  it  appeared  that  the  person  procured  by  the  broker 
entered  into  a  contract  with  the  owner  which  stipulated  for  a 
sale  of  the  real  estate  for  a  specified  sum  and  two  mortgages, 
and  required  the  closing  of  the  contract  at  a  subsequent  date; 
the  parties  failed  to  close  the  contract  because  of  the  exist- 
ence of  a  third  mortgage  on  the  premises.  Held,  that  the  broker 
was  not  entitled  to  commissions;  the  person  procured  by  him 
having  no  right  to  refuse  to  enter  into  a  contract  for  the  pur- 


THE  CONTRACT  OP  AGENCY.  95 

chase  of  the  property  subject  to  two  mortgages  only,  where 
the  owner  was  able  to  perform  the  contract  when  the  time  for 
the  passing  of  the  title  arrived.  Shapiro  v.  Nadler,  99  N.  Y.  S. 
879,  51  Misc.  13.  See  also  Sec.  33. 

Where  a  broker  was  employed  to  procure  a  purchaser,  or 
one  willing  to  exchange  properties,  his  contract  was  performed 
when  he  procured  a  purchaser  able  and  willing  to  purchase  or 
exchange,  and  the  fact  that  the  broker  made  material  misrep- 
resentations as  to  the  property  exchanged  for  his  client's  was  no 
bar  to  his  recovery  of  his  commissions,  as  the  agent  performed 
his  contract  when  he  brought  the  parties  together,  and  they, 
themselves,  concluded  the  trade.  Nichols  v.  Whitacre,  112  Mo. 
App.  692,  87  S.  W.  594.  See  Sec.  475.  A  broker  employed 
to  sell  land  on  commission  has  a  right  to  give  a  part  of  the 
commissions  to  the  purchaser.  Stephens  v.  Tomlinson  (Tex. 
Civ.  App.  '05),  88  S.  W.  304. 

"Where  the  plaintiff,  in  an  action  for  the  breach  of  a  con- 
tract to  sell  real  estate  for  the  purchase  of  which  he  entered 
into  a  contract  with  the  agent,  knew,  as  did  also  the  agent,  the 
terms  on  which  the  defendant  would  sell,  but  chose  to  enter 
into  a  contract  contrary  thereto,  he  is  not  entitled  to  recover. 
Fleming  v.  Burke,  122  Iowa,  433,  98  N.  W.  288.  See  also  Sec. 
307.  Where  a  real  estate  agent  claims  compensation  for  se- 
curing the  attendance  of  a  purchaser  at  a  public  land  sale,  he 
must  at  least  show  that  he  had  some  effect  upon  the  purchaser's 
attendance.  Perkins  v.  Underhitt,  103  N.  Y.  S.  25,  118  App, 
Div.  170. 

In  Nebraska,  to  entitle  a  broker  to  recover  on  a  purchase  of 
real  estate,  it  is  necessary  that  he  procure  a  valid  conveyance 
of  the  real  estate  or  an  enforceable  contract  for  a  sale.  Bolton 
v.  Colurn,  78  Neb.  731,  111  N.  W.  780,  782.  Where  the  owner 
of  property  employed  a  real  estate  broker  to  find  a  purchaser, 
the  mere  fact  that  the  prospective  purchaser  found  by  him 
afterward  notified  him  that  she  did  not  intend  to  purchase  did 
not  deprive  him  of  his  right  to  compensation,  where  she  actually 
purchased  the  property  within  two  or  three  months  thereafter. 
Groscup  v.  Downey,  105  Md.  273,  65  A.  930.  Compare  Sallee 
v.  McMurray,  113  Mo.  App.  253,  88  S.  W.  157. 


96  AMEEICAN  LAW   EEAL  ESTATE  AGENCY. 

The  rule  that  even  if  a  purchaser  knows  that  the  party  selling 
is  a  broker,  and  there  is  reason  to  helieve  that  he  is  selling  for 
some  principal,  yet  if  such  broker  does  not  bind  his  principal  by 
the  form  of  the  contract  made,  and  does  bind  himself  thereby, 
he  may  be  held  to  the  liability  of  a  vendor;  held,  applicable  to 
the  liability  of  an  agent  for  commission  under  a  contract  with 
a  broker  for  the  sale  of  his  principal's  real  estate.  Nudelman  v. 
Haffenberg,  199  111.  App.  463. 


CHAPTER  VIII. 

SECTION.  SECTION. 

42.  The  owner.  46.  Death,   and  its  effect  on  con- 

43.  Covenants.  tracts. 

44.  Conditional    contracts.  47.  Approval  of  principal. 

45.  Condition   precedent  to  taking       48.  Abbreviations. 

effect. 

Sec.  42.    The  owner. 

Where  a  non-resident  owner  employs  a  non-resident  agent  to 
sell  real  estate,  the  agent  is  authorized  to  employ  a  sub-agent. 
EasUand  v.  Maney,  36  Tex.  Civ.  App.  147,  81  S.  W.  574.  An 
owner  writing  to  his  broker  after  the  time  given  to  sell  had 
expired,  directing  him  to  sell,  if  possible,  within  the  next  thirty 
days,  if  he  could  get  a  certain  sum  net,  extended  the  term  of 
employment.  Johnson  v.  Wright*  124  Iowa,  61,  99  N.  W.  103. 
See  also  Sec.  560.  Where  an  owner  informed  his  broker  that 
it  would  not  be  necessary  for  him  to  produce  the  purchaser  to 
reduce  the  contract  to  writing,  further  steps  in  the  matter  by 
the  broker  were  unnecessary.  Gerhart  v.  Peck,  42  Mo.  App.  644. 
Where  the  owner  of  a  building  employed  brokers  to  obtain  ten- 
ants, and  authorized  the  brokers  to  conduct  their  customers 
into  the  building,  he  was  liable  for  injuries  sustained  by  a 
customer  while  examining  the  building  in  company  with  the 
brokers  and  due  to  their  negligence.  Boyd  v.  U.  S.  Mtge.,  etc., 
Co.,  94  N.  Y.  App.  Div.  413,  88  S.  289. 

The  mere  erection  of  a  sign  on  property  by  real  estate  agents 
as  for  sale  by  them,  the  name  of  the  owner  not  being  stated, 
does  not  hold  them  out  as  agents  to  the  public,  and  as  having 
general  authority  to  bind  the  owner  by  a  contract  of  sale.  Davis 
v.  Gordon,  87  Va.  559,  13  S.  E.  35.  If  a  letter  amounts  to  a 
request  to  the  person  addressed  to  procure  a  purchaser  for 
land,  when  the  writer  was  part  owner  of  the  land  and  had  full 
authority  to  act  for  the  other  owners  and  the  person  addressed 

97 


98  AMERICAN"  LAW  REAL  ESTATE  AGENCY. 

acted  upon  the  letter  and  did  procure  a  purchaser  satisfactory 
to  the  owner,  and  they  concluded  to  sell  the  land  to  such  pur- 
chaser, the  owners  were  legally  liable  to  pay  the  commissions 
promised.  Fisk  v.  Henerie,  13  Oregon,  156,  9  P.  322.  If  any 
of  the  terms  of  sale  as  to  payment,  abstracts  or  time  are  un- 
satisfactory to  the  owner,  he  should  object  on  that  ground,  and 
not  refuse  absolutely  to  sell.  Weaver  v.  Snow,  60  111.  App.  624. 
Where  a  contract  ran  for  one  year,  and  provided  that  if 
plaintiff,  a  real  estate  broker,  effected  a  sale  of  defendant's 
property,  he  was  to  receive  a  certain  commission,  and  in  case 
a  sale  was  made  without  his  aid  or  the  property  was  withdrawn 
from  sale,  one-half  commissions.  Held,  that  a  lease  for  five 
years  made  by  defendant,  with  the  exclusive  privilege  to  the 
lessee  of  purchasing  at  a  fixed  price  at  any  time  before  the 
expiration  of  the  lease,  was  a  sale  within  the  meaning  of  the 
contract,  and  entitled  plaintiff  to  one-half  of  the  commissions. 
Rucker  v.  Hall,  105  Cal.  425,  38  P.  962.  Compare  Sec.  19. 
Where  a  land-owner,  who  has  engaged  a  real  estate  agent  to 
sell  land  at  a  certain  price,  is  forced  to  join  with  a  joint  owner 
to  effect  a  sale,  and  sell  at  a  reduced  price,  the  agent  is  not 
entitled  to  commissions.  Buhl  v.  Noe,  51  111.  App.  622;  Wo- 
mack  v.  Douglas,  163  S.  W.  1130,  157  Ky.  716.  The  owner  of 
land  authorized  a  broker  to  sell  it  and  afterwards  sold  it  him- 
self; the  broker  then  found  a  purchaser  and  sued  for  his  com- 
missions. Held,  that  he  could  recover  only  on  the  ground  of 
the  owner's  breach  of  the  contract,  and  not  on  the  ground  that  he 
had  fulfilled  his  contract  as  broker,  for  the  owner  still  had  the 
power  to  sell  the  land  himself.  Metzer  v.  Wyatt,  41  111.  App. 
487.  See  authorities  that  a  sale  puts  an  end  to  the  contract  with 
the  broker,  Sec.  15. 

One  who  purchases  real  estate  from  a  non-resident  owner, 
through  a  real  estate  broker,  is  bound  to  ascertain,  not 
only  the  terms  of  his  authority,  but  also  the  correspond- 
ence by  which  such  authority  was  obtained.  Merritt  v. 
Wassenich,  49  Fed.  785;  SulUvant  v.  Jahren,  71  Kan.  127,  79 
P.  1071.  Where  certain  land  stood  in  the  name  of  a  third 
party,  and  the  real  owner  procured  a  broker  to  sell  the  land 
who  made  false  representations  as  to  its  value,  and  the  nominal 


THE  CONTRACT  OF  AGENCY.  99 

owner  of  the  land  held  title  to  a  bond  and  mortgage  given  in 
part  payment  of  the  price.  Held,  that  the  fraud  of  the  real 
owner  and  the  broker  was  imputable  to  the  person  in  whose 
name  they  acted.  Fairchild  v.  McMahon.  139  N.  Y.  290,  34 
N.  E.  779,  affirming  20  N.  Y.  S.  31,  65  Hun,  621. 

If  one  employed  to  manage  property  for  its  owner  is  em- 
powered to  make  such  repairs  only  as  are  necessary  to  pre- 
serve and  protect  the  property  from  ordinary  wear  and  tear, 
he  can  not  charge  the  owner  with  the  expense  of  permanent 
improvements,  as  of  rebuilding  after  a  fire.  Beekman  v.  Wil- 
son, 61  Cal.  335.  An  exclusive  agency  to  sell  merely  prohibits 
the  appointment  of  another  agent  for  the  sale  of  the  property, 
but  does  not  prevent  the  owner  himself  from  making  a  sale. 
Dole  v.  Sherwood,  41  Minn.  535,  43  N.  W.  569.  In  the  case 
of  an  agency  to  sell  real  estate,  the  exclusive  right  to  sell  not 
being  given,  the  owner  himself  still  has  the  right  to  make  a 
sale  independent  of  the  agent,  and  in  such  case  will  not  be 
liable  to  the  agent  for  commissions,  unless  he  sells  to  a  pur- 
chaser procured  by  the  agent.  Dole  v.  Sherwood,  41  Minn.  535, 
43  N.  W.  569 ;  Hungerford  v.  Hicks,  39  Conn.  259 ;  Gilbert  v. 
Coons,  37  111.  App.  448 ;  Darrow  v.  Harlow,  21  Wis.  306 ;  Traceij 
v.  Radeki  (Iowa  Sup.  '09),  119  N.  W.  525. 

The  owner  of  property  who  sells  it  himself  within  the  period 
which  he  has  given  to  a  broker  to  make  a  sale  thereof,  although 
the  broker  has  done  nothing  toward  facilitating  the  sale  of  the 
property,  and  the  contract  is  unsupported  by  a  valuable  con- 
sideration, must  pay  the  latter  the  commissions  agreed  on. 
Carle  v.  Parent  (Montreal  Law  Keports),  5  Q.  B.  451;  Camp- 
bell v.  Thomas,  87  Cal.  428;  Gregory  v.  Bonney,  135  Cal.  589, 
67  P.  1038;  Lipscomb  v.  Cole,  81  Mo.  App.  53;  Stringfellow  v. 
Powers,  4  Tex.  Civ.  App.  199,  23  S.  W.  313 ;  Harrel  v.  Zimple- 
men,  66  Tex.  292,  17  S,  W.  478 ;  Sechrist  v.  Atkinson,  31  App. 
(D.  C.)  1. 

Where  brokers  have  been  specifically  employed  to  negotiate  a 
contract  with  a  designated  person,  without  reserve  of  the  princi- 
pal's right  to  himself  independently  sell  to  the  same  person,  the 
rule  that  a  party  having  employed  a  broker  to  sell  property  may, 
nevertheless,  negotiate  a  sale  himself,  is  inapplicable.  Games  v. 
Bassick,  175  N.  Y.  Supp.  670. 


100  AMERICAN  LAW   REAL  ESTATE  AGENCY. 

In  a  New  York  case  of  a  similar  exclusive  character,  where 
the  agent  performed  no  services  in  relation  to  the  sale  of  the 
property  on  which  he  asked  commissions,  his  claim  was  denied 
on  the  ground  of  want  of  consideration.  Wright  v.  Fulling,  93 
N.  Y.  S.  228,  104  App.  Div.  49.  Where  defendants  authorized 
plaintiff  to  sell  certain  real  estate  for  them  at  any  time  within 
a  year,  the  contract  being  supported  by  a  valuable  considera- 
tion, and  agreed  to  pay  a  commission  if  a  sale  should  be  effected 
in  any  way  during  that  time,  and  the  land  was  sold  by  the 
defendants  within  the  year,  plaintiff  to  recover  a  commission 
need  not  show  that  he  produced  or  could  have  produced  a  pur- 
chaser. Crane  v.  McCormick,  92  Cal.  176,  28  P.  222. 

The  owner  of  property,  after  negotiating  with  J  with  refer- 
ence to  a  sale,  gave  plaintiff  a  written  authority  to  sell  the 
property  for  a  specified  price,  and  plaintiff  then  negotiated 
with  J,  who  made  an  offer  of  a  less  sum,  which  was  rejected 
by  the  owner,  thereafter  the  owner  revoked  the  authority,  and 
subsequently,  in  pursuance  of  the  negotiations  between  him 
and  J,  sold  the  property  for  the  price  fixed  in  plantiff's  au- 
thority. Held,  that  in  the  absence  of  any  fraud  or  bad  faith, 
plaintiff  was  not  entitled  to  recover  a  commission.  Cards  v. 
Perth,  100  N.  Y.  S.  1043,  115  App.  Div.  568,  103  N.  Y.  S. 
1121;  Newton  v.  Conness  (Tex.  Civ.  App.  '08),  106  S.  W. 
892.  The  owner  of  land  may  sell  the  same  himself,  although 
he  has  placed  it  in  the  hands  of  a  broker  for  sale,  and  the 
most  the  broker  can  claim  is  a  commission  on  the  sale.  Woolf 
v.  Sullivan,  224  111.  509,  79  N.  E.  646. 

Where  an  owner  of  real  estate  which  he  has  listed  with  an 
agent  for  sale  for  a  definite  price,  sells  the  same  unaided  to 
one  ostensibly  the  purchaser  but  really  acting  for  another, 
who  was  induced  to  purchase  it  by  the  efforts  of  the  agent,  but 
the  owner  acted  in  good  faith  and  in  ignorance  of  these  efforts, 
and  sold  for  a  consideration  less  than  that  given  to  the  agent, 
he  is  not,  there  being  no  exclusive  agency,  liable  for  the  com- 
missions agreed  to  be  paid  to  the  agent  for  the  production  of 
a  purchaser  ready,  able  and  willing  to  pay  what  the  owner 
demanded.  Quist  v.  Goodfellow,  99  Minn.  509,  110  N.  W.  65. 
(NOTE. — In  that  State  the  doctrine  of  the  procuring  cause  of  the 
sale  is  not  in  its  fullest  extent  recognized,  and,  in  the  absence 


THE  CONTRACT  OF  AGENCY.  101 

of  an  exclusive  right  of  sale,  to  entitle  a  broker  to  a  commission 
it  must  appear  that  the  owner  knew,  or  from  the  circumstances 
ought  to  have  known,  that  the  broker  was  instrumental  in  in- 
ducing the  purchaser  to  enter  into  the  contract.) 

An  owner  listing  his  property  for  sale  at  a  fixed  price  with 
a  real  estate  broker,  with  knowledge  that  th3  latter  on  pro- 
curing a  purchaser  will  charge  a  commission,  is  liable  for  the 
commission  when  the  broker  procures  a  customer  to  whom  a 
sale  is  made  at  the  price  fixed.  Gault  v.  Bradshaw,  48  Wash. 
364,  93  P.  534.  A  broker  was  employed  to  procure  a  pur- 
chaser for  a  farm  within  a  specified  time  at  a  price  which  should 
net  the  owner  $11,000  and  the  broker  $875,  or  such  less  sum 
as  should  be  satisfactory  to  the  broker's  agent  having  charge 
of  the  transaction;  the  owner  sold  the  premises  to  a  purchaser 
procured  by  the  agent  of  the  broker  for  $11,000,  and  the  pur- 
chaser paid  the  agent  $100  for  commissions.  Held,  that  the 
owner,  if  he  knew  that  the  agent  in  conducting  the  sale  vio- 
lated the  instructions  of  the  broker,  was  liable  to  the  broker 
for  commissions  to  the  extent  of  $875,  on  the  ground  that  he 
was  guilty  of  a  fraud  on  the  broker.  Haven  v.  Tartar,  124  Mo. 
App.  691,  102  S.  W.  21;  Thwing  v.  Clifford,  136  Mass.  482. 

Although  the  owner  of  property  may,  after  authorizing  the 
sale  by  a  broker,  contract  with  a  purchaser  by  himself  alone, 
without  rendering  himself  liable  to  the  broker  for  a  commis- 
sion, he  is  not  relieved  of  such  obligation  if  he  sells  to  a  pur- 
chaser found  and  stimulated  to  make  the  purchase  by  the  ef- 
forts of  the  broker,  even  though  he  has  no  actual  knowledge 
that  the  broker  has  been  the  procuring  cause,  provided  the 
broker  has  not,  in  the  meantime,  abandoned  his  undertaking. 
Sechrist  v.  Atkinson,  31  App.  (D.  C.)  1. 

The  fact  that  a  person  employing  a  broker  to  secure  a  renewal 
or  extension  of  a  mortgage  loan  is  the  owner  of  one  undivided 
half  of  the  mortgaged  premises,  and  has  no  authority  to  contract 
for  the  co-owner,  does  not  relieve  him  of  liability  for  commissions. 
Stone  v.  Deahl,  174  111.  App.  421. 

Where  brokers,  without  authority  from  their  principal,  con- 
tract to  sell  more  land  than  the  principal  owned,  and  the  prin- 
cipal promptly  repudiated  the  contract  and  received  no  part  of 
such  money,  he  was  not  liable  to  the  purchaser  for  purchase 


102  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

money  received  by  the  brokers.    Hurford  v.  Norvall,  135  P.  1060, 
39  Okl.  496. 

A  contract  between  a  real  estate  broker  and  an  owner  provided 
for  a  sale  of  lots  at  auction;  held,  not  to  deprive  the  owner  of  the 
right  to  sell  independently  of  the  broker.  Head-Bevig  Co.  v. 
Bannister,  153  P.  669,  —  Okl.  Sup.  — .  Ordinarily  an  owner  of 
land  may  sell,  even  though  he  has  listed  it  with  a  broker.  Buck 
v.  Woodson,  209  S.  W.  344,  —  Tex.  Civ.  App.  — . 

Bee.  43.    Covenants. 

If  an  agent  in  selling  land  adds  covenants  not  authorized  by 
his  authority,  the  purchaser  may  enforce  so  much  of  the  con- 
tract as  conforms  to  the  authority,  or  claim  a  revision  of  the 
whole,  if  the  principal  will  not  execute  a  conveyance.  Venada 
v.  Hopkins,  I  J.  J.  Marsh  (Ky.),  285,  293.  An  agent  who 
effects  a  sale  of  his  principal's  lands,  and  enters  into  a  cove- 
nant to  convey  and  assure  the  land  to  the  purchaser,  is  re- 
sponsible to  such  purchaser  under  such  covenant.  Harper  v. 
'Hampton,  1  Harr.  &  J.  (Md.)  622.  See  also  Sec.  76a. 

The  great  preponderance  of  authority  now  is,  that  a  power, 
without  restriction,  to  sell  and  convey  real  estate,  gives  au- 
thority to  the  agent  to  deliver  deeds,  with  general  warranty, 
binding  on  the  principal  where,  under  the  circumstances,  this 
is  the  common  and  usual  mode  of  conveying.  LeRoy  v.  Beard, 
8  How.  (U.  S.)  451;  Peters  v.  Farnsivorth,  15  Vt.  155;  Venada 
v.  Hopkins,  1  J.  J.  Marsh  (Ky.),  293;  Taggart  v.  Stanberry, 
2  McLean  (U.  S.),  543;  Schultz  v.  Griffin,  8  N.  Y.  St.  332, 
24  N.  E.  480.  Sec.  417.  (See  Sec.  418  for  authorities  qualify- 
ing this  doctrine.) 

An  agent  acting  under  parol  authority  only  can  not  bind  his 
principal  by  a  written  covenant,  under  seal,  signed  with  the 
name  of  such  principal;  such  an  instrument  is  not,  in  any 
sense,  the  deed  of  the  principal  unless  delivered  by  him.  Har- 
shaw  v.  McKesson,  65  N.  C.  688. 

An  owner  of  real  estate  employing  a  broker  to  procure  a 
purchaser.  Held,  not  required  to  inform  the  broker  of  the 
existence  of  restrictive  covenants  in  the  chain  of  title.  Ranger 
v.  Leo,  121  N.  Y.  S.  328. 


THE  CONTRACT  OF  AGENCY.  103 

Sec.  44.    Conditional  contracts. 

Where  plaintiff  in  an  action  to  recover  commissions  for  pro- 
curing a  purchaser  for  real  estate  proves  the  execution  of  the 
contract  of  purchase,  which  defendant  claims  was  signed  con- 
ditionally, the  burden  of  proving  such  defense  is  on  the  de- 
fendant. Folinsbee  v.  Sawyer,  36  N.  Y.  S.  405,  15  Misc.  293. 

Property  owner  and  a  real  estate  broker  may  agree  that  pay- 
ment of  commission  depends  upon  the  making  of  an  enforceable 
contract  between  the  owner  and  a  purchaser,  or  condition,  pay- 
ment to  be  only  from  the  proceeds  of  the  sale.  Edward  F.  Har- 
rington Co.  v.  Waban  Rose  Conservatories,  111  N.  E.  37,  222 
Mass.  372. 

Sec.  45.     Condition  precedent  to  the  contract  of  sale  taking 
effect. 

A  vendor  may,  if  he  is  doubtful  of  the  proposed  vendee's 
ability  to  carry  out  his  contract  of  purchase,  accept  the  con- 
tract conditionally,  and  agree  to  sell,  provided  the  purchaser 
proves  able  to  perform  its  conditions.  Flyim  v.  Jordal,  124 
Iowa,  457,  100  N.  W.  326.  See  also  Sees.  54,  65,  182. 

An  agreement  providing  for  the  sale  and  purchase  of  real 
estate,  which  stipulates  that  the  contract  shall  be  made  at  a 
specified  time  and  place,  that  the  commission  to  be  paid  to  the 
broker  for  procuring  the  purchaser  shall  be  paid  on  "closing 
of  title,"  fixes  the  time  when  the  commission  shall  be  payable; 
but  the  actual  closing  of  the  title  is  not  a  condition  precedent 
to  a  recovery  of  the  commission,  and  the  broker,  on  the  owner 
refusing  to  complete  the  sale,  may  recover  his  commission. 
Meltzer  v.  Strauss,  113  N.  Y.  S.  583,  61  Misc.  250. 

Where  a  principal,  after  hiring  a  broker  to  effect  a  loan, 
refused  to  accept  it  after  it  was  arranged,  the  broker  was  ex- 
cused from  bringing  the  intending  lender  into  the  principal's 
presence,  or  furnishing  him  with  the  lender's  name,  as  a  con- 
dition precedent  to  his  right  to  compensation.  Morrison  v.  Tuska, 
113  N.  Y.  S.  611. 

While,  as  a  general  rule,  a  broker  employed  by  the  owner  of 
real  estate  to  sell  it  becomes  entitled  to  a  reasonable  compensa- 
tion when,  through  his  services,  such  real  estate  is  sold,  where 


104  AMEEICAN  LAW  KEAL  ESTATE  AGENCY. 

the  contract  contains  conditions  the  broker  must  comply  therewith. 
Mabry  v.  Bailey  &  Howard,  59  S.  322,  5  Ala.  App.  383. 

Where  in  an  action  for  commissions  the  evidence  showed  that 
the  owner  had  not  accepted  the  purchaser  absolutely,  but  only 
upon  condition  that  the  purchaser  should  give  certain  security, 
the  broker  had  not  negotiated  a  sale  and  was  not  entitled  to  re- 
cover. Clark  v.  Banner,  104  N.  E.  494,  217  Mass.  201. 

Sec.  46.    Death,  and  its  effect  on  contracts. 

An  agency  may  be  terminated  by  the  death  of  the  principal. 
Crowe  v.  Trickey,  204  U.  S.  228,  affirming  71  P.  (Ariz.)  965; 
Crowe  v.  Harmon,  204  U.  S.  241,  affirming  71  P.  (Ariz.)  1125; 
Kyle  v.  Gaff,  105  Mo.  App.  672,  78  S.  W.  1047;  Shisler's  Est., 
2  Pa.  Dist.  Ct.  588. 

In  an  action  by  a  broker  for  his  commissions  in  negotiating 
an  exchange  of  properties,  reference  in  a  single  letter  by  one 
of  the  parties  to  the  trade  to  the  other,  indicating  that  the 
proposition  had  been  submitted  to  him  by  plaintiff,  and  the 
testimony  of  the  other  party  that  it  was  through  plaintiff  that 
he  came  to  know  the  former,  and  that  he  had  the  property  in 
question  to  trade,  are  not  sufficient  to  show  plaintiff's  employ- 
ment by  the  party  writing  the  letter,  where  it  does  not  appear 
that  any  demand  for  commissions  was  made  by  the  plaintiff  un- 
til the  party 's  death,  though  he  lived  for  some  months  after- 
ward. Ehrenroth  v.  Putnam  (Tex.  Civ.  App.  '00),  55  S.  W. 
190. 

Sec.  47.    Approval  of  principal. 

One  employed  to  sell  land  at  an  agreed  price  and  who  receives 
in  part  payment  land  of  a  certain  character  within  a  speci- 
fied locality,  can  not  recover  commissions  where  the  owner  re- 
fuses to  consummate  the  trade,  if  the  contract  of  employment 
provided  that  the  sale  should  be  subject  to  the  owner's  ap- 
proval. Goin  v.  Hess,  102  Iowa,  140,  71  N.  W.  218;  Denis  v. 
Tilton,  120  La.  226,  45  S.  112;  Slayback  v.  Wetzel  (Mo.  App. 
'09),  123  S.  W.  598;  Jenson  v.  Belson,  205  111.  App.  295. 

If  a  broker  employed  to  purchase  an  estate  buys  it  for  him- 
self, it  is  necessary,  in  order  to  unfold  the  transaction  and 


THE  CONTRACT  OF  AGENCY.  105 

render  him  liable  to  account,  that  the  agency  of  the  broker  for 
the  principal  be  approved.  Lazarus  v.  Sands,  33  1ST.  Y.  S.  855, 
12  Misc.  575,  27  N.  Y.  S.  885,  7  Misc.  282.  Where  the  con- 
tract of  sale  was  to  be  approved  by  the  owner,  an  instruction 
that  plaintiff  was  entitled  to  commissions  if  he  found  a  pur- 
chaser, though  defendant  refused  to  carry  out  the  trade,  was 
erroneous.  Goin  v.  Hess,  102  Iowa,  140,  71  N.  W.  218. 

Sec.  48.    Abbreviations. 

Where  the  abbreviations  used  in  a  broker's  authorization  were 
such  that  parties  familiar  with  land  descriptions  could  under- 
stand them  easily,  their  use  did  not  render  the  authority  void 
for  uncertainty.  Meline  v.  Ruffino,  129  Cal.  514,  62  P.  93. 


CHAPTER  IX. 

SECTION.  SECTION. 

49.  Ambiguous    contract.  53.  Credit. 

50.  Banks.  54.  Contingency. 

51.  Consent.  55.  Changes  in  contracts. 
62.  Caveat  emptor.  56.  Counter   proposition. 

Sec.  49.    Ambiguous  contracts. 

Where  letters  from  the  owner  of  land  to  a  real  estate  broker 
named  terms  of  sale,  and  told  the  broker  if  he  could  effect 
sales  the  owner  would  be  glad,  but  that  the  right  to  refuse 
offers  was  reserved,  that  the  broker  might  wire  if  he  found  a 
customer  at  the  price  named,  and  he  could  have  the  land  and 
the  broker  his  commission,  it  was  held  that  where  the  language 
was  ambiguous,  the  ambiguity  must  be  .taken  most  strongly 
against  the  owner,  especially  where  third  persons  have  acted 
thereunder,  and  the  broker  having  found  persons  ready  to  pur- 
chase on  the  terms  named,  was  entitled  to  his  commissions,  al- 
though the  owner  refused  to  sell.  Hopwood  v.  Corbin,  63  Iowa, 
218,  18  N.  W.  911;  Wright  Land  &  Inv.  Co.  v.  Even,  186  P. 
681,  —  Mont.  Sup.  — . 

Where  a  broker  produced  a  customer,  and  to  whom  principal 
agreed  to  sell,  the  mere  fact  that  the  contract  contained  no  ex- 
press promise  to  purchase  did  not  make  it  so  lacking  in  mutual- 
ity that  the  broker  could  recover  no  commission,  reciprocal  obliga- 
tion of  purchase  being  implied.  Warmack  v.  Perkins,  201  S.  W. 
120,  —  Ark.  Sup.  — . 

Sec.  50    Banks. 

The  cashier  of  a  bank  having  implied  authority,  as  its  execu- 
tive officer,  to  contract  for  the  disposal  of  lands  acquired  by 
the  bank  in  the  collection  of  its  credits,  will  bind  the  bank  by 
his  contract  to  pay  commissions  for  the  disposal  of  lands  placed 


THE  CONTEACT  OF  AGENCY.  107 

in  the  hands  of  a  broker,  but  which  through  mistake  in  identity 
the  bank  does  not  own.  Arnold  v.  Nat.  Bk.  of  Waupaca,  126 
Wis.  362,  105  N.  W.  828,  3  L.  R.  A.  (N.  S.)  580. 

Where  a  real  estate  agent  furnished  a  purchaser  who  was  able 
and  willing  to  buy,  and  who  entered  into  a  contract  providing 
that  he  should  deposit  $500,  which  should  be  returned  if  any 
defect  existed  in  the  title  which  the  seller  could  not  cure  in 
thirty  days,  and  the  contract  failed  of  consummation  solely 
because  there  was  such  a  defect,  the  fact  that  the  check  which 
was  deposited  according  to  the  contract  was  on  a  bank  from 
which  the  prospective  buyer  withdrew  his  funds,  and  the  check 
was  afterward  refused,  did  not  preclude  the  agent  from  recover- 
ing his  commissions.  Perkins  v.  Kimberlin,  110  Mo.  App.  661, 
85  S.  W.  630. 

Where  a  bank  agrees  to  pay  a  real  estate  broker  a  commis- 
sion on  the  sale  of  lands,  it  can  not  set  up  as  a  defense  that, 
under  the  laws  of  the  State  in  which  the  land  is  situated,  a 
bank  is  prohibited  from  dealing  in  real  estate,  where  it  has 
availed  itself  of  the  benefits  of  the  sale.  Church  v.  Johnson, 
93  Iowa,  544,  61  N.  W.  916. 

Where  defendant,  attorney  for  the  president  of  a  bank,  engaged 
a  broker  to  procure  a  purchaser  for  land  belonging  to  the  bank, 
title  to  which  property  had  stood  in  the  name  of  the  attorney, 
as  trustee,  prior  to  a  sheriffs  sale  made  to  clear  the  title,  and  the 
contract  was  the  usual  one,  commission  is  earned  where  the 
broker  procures  a  customer  with  whom  defendant  was  willing  to 
contract,  regardless  of  the  final  outcome  of  the  sale.  Lieberman 
v.  Colahan,  110  A.  246,  —  Pa.  Super.  — . 
Sec.  51.  Consent. 

If  an  agent  employed  to  sell  property  buys  it  for  himself, 
in  an  action  for  compensation  the  burden  of  proving  that  the 
principal  had  knowledge  of  the  facts  and  consented  to  the  sale 
rests  on  the  agent.  Jansen  v.  Williams,  36  Neb.  869,  55  N.  W. 
279,  20  L.  E.  A.  207 ;  Grant  v.  Hardy,  33  Wis.  668. 

If  a,  broker  is  employed  as  the  agent  of  either  party  so  that 
that  party  relies  on  him  to  secure  the  best  bargain  possible, 
then  the  general  rule  forbidding  double  employment  applies, 
and  the  broker  can  not  recover  commissions  from  both  parties 


108  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

to  the  transaction.  Sates  v.  Copeland,  McArthur  &  M.  (D.  C.) 
50;  Lloyd  v.  Colston,  5  Bush  (Ky.),  587;  Raisin  v.  Clark,  41 
Md.  158;  Follansoee  v.  O'Reilly,  135  Mass.  80;  Harwitz  v. 
Pepper,  128  Mich.  688,  87  N.  W.  1034;  Friar  v.  Smith,  120 
Mich,  411,  79  N.  W.  633,  46  L.  R.  A.  229 ;  Leathers  v.  Canfield, 
117  Mich.  277,  75  N.  W.  612,  45  L.  E.  A.  33 ;  Scribner  v.  Collier, 
40  Mich.  375;  Dartt  v.  Somnesym,  86  Minn.  55,  90  N.  W.  115; 
De  Steiger  v.  Hollington,  17  Mo.  App.  382 ;  Pugsley  v.  Murray, 
4  E.  D.  Smith  (N.  Y.),  245;  Dunlap  v.  Richards,  2  E.  D.  Smith 
(N.  Y.),  181;  Watkins  v.  Consell,  1  E.  D.  Smith  (N.  Y.),  65; 
Brierly  v.  Connelly,  64  N.  Y.  S.  9,  31  Misc.  268;  Norman  v. 
Eeuther,  54  N.  Y.  S.  152,  25  Misc.  161 ;  Linderman  v.  McKenna, 
20  Pa.  Super.  Ct.  409;  Meyer  v.  Hanchett,  43  Wis.  246;  Single 
v.  Russell,  80  A.  164,  114  Md.  418;  Sumone  v.  Dereskinwicz,  74 
A.  906,  82  Conn.  547;  Jaco&s  v.  Beyer,  125  N.  Y.  Sup.  597,  141 
App.  Div.  49;  Siler  v.  Perkins,  140  S.  W.  1060,  126  Tenn.  380, 
47  L.  R.  A.  (N.  S.)  232;  King  v.  Reed,  141  P.  41,  24  Cal.  App. 
229;  Clopton  v.  Meeves,  133  P.  907,  24  Idaho,  293;  Moore  v. 
ZeHey,  162  S.  W.  1034,  —  Tex.  Civ.  App.  — ;  Leno  v.  Stewart, 
95  A.  539,  89  Vt.  286,  Ann.  Cas.  1917  A,  509 ;  Jauman  v.  Mc- 
Cusick,  137  P.  254,  166  Cal.  517;  Shepherd-Teague  Co.  v.  Her- 
mann, 107  P.  622,  12  Cal.  App.  394;  Zimmerman  v.  Garvey,  71 
A.  780,  81  Conn.  570;  Neuman  v.  Friedman,  136  S.  W.  251,  156 
Mo.  App.  142 ;  Adams  v.  Boren,  194  S.  W.  619,  —  Tex.  Civ.  App. 
— ;  Whittle  v.  Klipper,  165  N.  W.  425,  —  Iowa  Sup.  — ;  Brown 
v.Hurb,  164  N.  W.  386,  —Mich.  Sup.—;  Yockum  v.  Gassett,  200 
S.  W.  582,  —  Tex.  Civ.  App.  — ;  Dingman  v.  Boyle,  120  N.  E. 
487,  —  111.  Sup.  — ,  rev.  judg.  209  111.  App.  311;  Blaschika  v. 
Ferguson  &  Dyers,  208  S.  W.  727,  —  Tex.  Civ.  App.  — ;  Baker 
v.  Greer,  208  S.  W.  755,  —  Tex.  Civ.  App.  — ;  Buck  v.  Woodson, 
209  S.  W.  344,  —  Tex.  Civ.  App.  — ;  McCulley  v.  Elvers,  170 
N.  W.  24,  200  Mich.  417;  Baum  v.  Kelley,  176  K  Y.  Sup.  22; 
James  E.  Carlson,  Inc.  v.  Babler,  174  N.  W.  824,  —  Minn.  Sup. 
— ;  Williams  v.  Knight  Realty  Co.,  217  S.  W.  755,  —  Tex.  Civ. 
App.  — ;  Gallway  v.  Galbreath,  187  P.  73,  —  Cal.  App.  — ; 
Murphy  v.  Willis,  219  S.  W.  776,  —  Ark.  Sup.  — ;  Hume  v. 
Baggett  &  Baggett,  221  S.  W.  1002,  —  Tex.  Civ.  App.  — ; 
Twiss  v.  Herbst,  111  A.  201,  —  Conn.  Sup.  — ;  Gardner  v. 
Buschler,  111  A.  589,  —  Conn.  Sup.  — . 


THE   CONTRACT   OF  AGENCY.  109 

Unless  they  consent  to  his  acting  for  both,  either  expressly 
or  by  clear  implication.  Alexander  v.  N.  W.  Chr.  Univ.,  57  Ind. 
466;  Scribner  v.  Collier,  40  Mich.  375;  De  Steiger  v.  Hollington, 
17  Mo.  App.  382;  Rowe  v.  Stephens,  53  N.  Y.  621;  Geery  v. 
Pollock,  44  N.  Y.  S.  673,  16  App.  Div.  321;  Abel  v.  Disbrow, 
44  N.  Y.  S.  573,  15  App.  Div.  536 ;  Lansing  v.  Bliss,  33  N.  Y.  S. 
310,  86  Hun.  205;  Dunlap  v.  Richards,  2  E.  D.  Smith  (N.  Y.), 
181;  Whiting  v.  Saunders,  49  N.  Y.  S.  1016,  22  Misc.  539; 
Haviland  v.  Price,  26  N.  Y.  S.  757,  6  Misc.  372;  Lamb  v.  Baxter, 
130  N.  C.  67,  40  S.  E.  850;  Maxwell  v.  West,  23  Pa.  Co.  Ct.  302; 
Meyer  v.  Hanchett,  43  Wis.  246;  Cass  v.  Tolbert  (Tex.  Civ.  App. 
'08),  112  S.  W.  1077;  Minto  v.  Moore,  55  S.  542,  1  Ala.  App. 
556;  Harten  v.  Laffler,  31  App.  D.  C.  362;  Rineberger  v.  TFess- 
wer,  137  P.  969,  91  Kan.  303;  Neuman  v.  Friedman,  136  S.  W. 
251,  156  Mo.  142;  Hoffhines  v.  Thorson,  141  P.  253,  92  Kan. 
605;  McClure  v.  Clements,  143  S.  W.  82,  161  Mo.  App.  23; 
Levy  v.  Gross,  149  P.  237,  46  Okl.  626;  Susee  v.  Neumann,  123 
N.  Y.  Sup.  776,  67  Misc.  Eep.  605;  Byrne  v.  Jacobs,  162  S.  W. 
8,  —  Tex.  Civ.  App.  — ;  Bauer  v.  Crow,  171  S.  W.  296,  —  Tex. 
Civ.  App.  — ;  Staats  v.  Weaver,  123  P.  666,  53  Cal.  25;  Am.  Sec. 
Inv.  Co.  v.  Penney,  152  N.  W.  771,  129  Minn.  369;  Johnson  v. 
Kurzenknabe,  182  111.  App.  159;  Maddox  v.  Davis,  192  111.  App. 
575 ;  Maddox  v.  Harding,  135  N.  W.  — ,  91  Neb.  292 ;  FrancTc  v. 
Blazier,  133  P.  800,,  66  Or.  377;  Hunter  v.  Lyons,  144  S.  W. 
353,  —  Tex.  Civ.  App.  — ;  Price  v.  Partridge,  139  P.  34,  78 
Wash  362;  Stapp  v.  Godfrey,  139  N.  W.  893,  158  Iowa,  376; 
Goldsberg  v.  Thomas,  165  S.  W.  1179,  178  Mo.  App.  334;  Fram 
v.  McCarty,  168  S.  W.  44,,  —  Tex.  Civ.  App.  — ;  Hull  v.  Eidt- 
Summerfield  Co.,  204  S.  W.  480,  —  Tex.  Civ.  App.  — ;  Burt  v. 
Woodson,  209  S.  W.  244,  —  Tex.  Civ.  App.  — ;  Girt  v.  Shaw,  70 
Pa.  Super.  Ct.  345;  James  E.  Carlson,  Inc.  v.  Bailer,  174  N.  W. 
824,  —  Minn.  Sup.  — ;  Edmundson  v.  Phenix,  178  N.  W.  893', 
—  Minn.  — ;  Hoefling  v.  Borson,  180  N.  W.  750,  —  Iowa 
Sup.  — . 

The  fact  that  a  broker  employed  to  effect  a  sale  is  a  director 
in  the  corporation  which  he  procures  to  buy  the  property,  does 
not  prevent  him  from  recovering  a  commission,  where  the  per- 
son who  practically  owns  the  capital  stock  of  the  corporation 
consented  to  the  transaction,  the  question  of  fair  dealing  being 


110  AMERICAN"   LAW   EEAL   ESTATE   AGENCY. 

submitted  to  the  jury.  Goldshear  v.  Barrow,  85  N.  Y.  S.  395, 
42  Misc,  198.  Mere  consent  by  a  person  to  the  rendition  by 
a  real  estate  agent  of  unsolicited  services  which  result  in  a 
sale  of  the  property,  does  not,  of  itself,  create  a  contract  or 
entitle  the  broker  to  recover  compensation  under  an  implied 
[promise  of  remuneration  for  such  voluntary  services.  Viley  v. 
Pettit,  96  Ky.  576,  16  Ky.  L.  R.  650,  29  S.  W.  438;  Weinhuse 
v.  Cronin,  68  Conn.  250,  36  A.  45.  Contra,  Kinder  v.  Pope,  106 
Mo.  App.  536,  80  S.  W.  315. 

T  and  W  entered  into  a  contract  with  0  to  sell  real  estate  for 
him  within  a  certain  time,  on  certain  commissions;  before  the 
expiration  of  the  time  0  requested  the  return  of  the  agreement ; 
W  offered  to  purchase  the  land  himself  rather  than  lose  the 
sale;  the  relation  between  the  parties  was  that  of  principal  and 
agent,  and  could  not  be  changed  without  O's  consent  into  that 
of  vendor  and  purchaser.  Tower  v.  O'Neil,  66  Pa.  St.  332.  See 
also  Sees.  477,  478. 

"Where  a  seller,  in  order  to.  delude  the  purchaser  as  to  the 
amount  of  commission  to  be  paid  on  a  sale  of  property,  au- 
thorized the  broker  to  deal  with  the  purchaser  for  compensa- 
tion. This  was  not  such  bad  faith  on  the  part  of  the  broker 
as  precluded  him  from  recovering  compensation  from  the 
seller.  Siler  v.  Perkins,  140  S.  W.  1060,  126  Tenn.  380,  47 
L.  R.  A.  (N.  S.)  232. 

Though  the  owner  did  not  know  when  contracting  with 
plaintiff  to  procure  a  purchaser  that  plaintiff  was  also  acting 
for  the  other  party,  plaintiff  might  recover  commissions  if 
such  relation  had  been  terminated  when  defendant  learned 
thereof.  T.  A.  Hill  &  Son  v.  Patton  &  Schwartz,  160  S.  W. 
1155,  —  Tex.  Civ.  App.  — . 

The  rule  which  precludes  a  real  estate  agent  from  repre- 
senting both  vendor  and  purchaser,  though  claiming  to  act 
as  middleman,  is  intended  to  secure  honest  service,  and  to 
enable  both  vendor  and  purchaser  to  know  whom  he  is  serv- 
ing. Clopton  v.  Meeves,  133  P.  907,  24  Idaho,  293. 

In  the  case  of  an  agreement  for  an  exchange  of  land  pro- 
cured by  a  broker,  facts  may  warrant  recovery  of  commis- 
sions from  one  party  but  not  from  the  other.  Levy  v.  Dusen- 
lerry,  163  P.  231,  32  Cal.  App.  411. 


THE  CONTRACT  OF  AGENCY.  Ill 

"Where  a  realty  broker  brought  together  his  principal,  with 
land  for  sale,  and  another  person  for  whom  he  was  acting  to 
effect  an  exchange,  in  which  event  he  would  have  received  a 
commission  from  both,  without  either  having  knowledge  of 
the  double  agency,  the  law  will  not  give  effect  to  the  agent's 
act  by  awarding  him  a  commission  against  complaining  prin- 
cipal with  land  for  sale,  simply  because  the  other  principal 
did  not  exchange  lands,  but  sold  them  and  bought  lands  of 
first  principal.  Buck  v.  Woodson,  209  S.  W.  244,  —  Tex.  Civ. 
App.  — . 

Where  the  bookkeeper  for  buyers  of  a  plantation  did  not 
accept  the  proposition  of  the  agent  for  the  sellers  to  act  as 
sub-agent,  but  refused  his  offer  to  share  commission  and 
elected  to  represent  his  employers  in  an  offer  to  buy  at  lower 
than  list  price,  negotiating  direct  with  the  sellers  and  acting 
for  the  buyers,  without  intimating  either  to  the  sellers'  agent 
or  the  sellers  that  he  was  representing  the  latter,  he  is  not 
entitled  to  recover  from  the  sellers'  agent  half  of  the  commis- 
sion voluntarily  paid  such  agent  by  the  sellers.  Henry  v.  Lamens- 
dorf,  83  S.  727,  —  Miss.  Sup.  — . 

Agreement  by  a  broker  with  an  owner,  giving  the  broker 
the  right  to  sell  on  commission,  and  also  giving  him  the  right 
to  purchase  the  property  for  himself,  was  not  within  the  rule 
forbidding  a  broker  buying  from  or  selling  to  an  employer, 
as  the  owner,  by  voluntarily  signing  the  contract,  must  know 
that  it  provides  for  the  broker's  purchase  for  himself.  Fitzger- 
ald v.  Boyle,  193  P.  1109,  —  Utah  Sup.  — . 

Where  a  contract  gave  a  broker  an  option  to  purchase  him- 
self or  to  find  a  purchaser,  he  is,  on  purchasing  the  property 
himself,  entitled  to  deduct  the  agreed  commission,  just  as  if 
he  had  negotiated  a  sale  to  a  third  person.  Id. 

Where  a  broker  sold  the  owner's  land  to  his  wife,  and  the 
contract  and  deed  were  placed  with  a  depositary  to  be  deliv- 
ered to  the  purchaser  in  compliance  with  the  terms  of  the 
contract,  the  relationship  between  the  purchaser  and  the 
broker  held,  to  furnish  no  ground  for  refusing  to  complete 
the  transaction,  the  owner  being  fully  informed  of  such  re- 
lationship before  the  contract  was  executed.  Neal  v.  Owings, 
194  P.  324,  —  Kan.  Sup.  — . 


112  AMERICAN  LAW  BEAL  ESTATE  AGENCY. 

Sec.  52.    Caveat  emptor. 

A  purchaser  of  real  estate  is  entitled  to  rely  on  the  repre- 
sentation of  the  agent  for  the  sale  thereof  as  to  its  location, 
and  is  not  bound  by  the  doctrine  of  caveat  emptor  to  make 
further  inquiries  as  to  its  boundaries.  Roberts  v.  Holliday, 
10  S.  D.  576,  74  N.  W.  1034;  Selby  v.  Matson,  114  N.  W.  609, 
137  Iowa,  97.  Compare  Sec.  348. 

Sec.  53.    Credit. 

An  agent  to  sell  land  on  credit  has  no  implied  authority  to  re- 
ceive payment  therefor,  nor  to  receive  payment  before  due,  nor 
in  anything  but  money.  Mann  v.  Robinson,  19  W.  Va.  49.  Com- 
pare Sec.  335.  A  broker  employed  to  sell  real  estate  has  no 
authority  to  bind  his  principal  by  a  contract  to  sell  on  credit 
unless  expressly  authorized.  Staten  v.  Hammer,  121  Iowa,  499, 
96  N.  W.  964;  Smith  v.  McCann,  205  Pa.  St.  57,  54  A.  498; 
Edwards  v.  Davidson  (Tex.  Civ.  App.  '04),  79  S.  W.  48;  Rundle 
v.  Cutting,  18  Colo.  337,  32  P.  994 ;  Gilbert  v.  Baxter,  71  Iowa, 
327,  32  N.  W.  364;  Wanless  v.  McCanless,  38  Iowa,  20;  Kemp- 
ner  v.  Qans,  111  S.  W.  1123,  87  Ark.  221,  re.  den.  112  S.  W. 
1087,  87  Ark.  221.  And  to  sell  on  credit,  a  sale  for  the 
amount  in  cash  is  unauthorized.  Jackson  v.  Marohn  (S.  D. 
Sup.  '09),  119  N.  W.  988. 

Where  land  is  entrusted  to  real  estate  agents  to  sell  and  col- 
lect the  purchase  money,  the  purchaser  is  entitled  to  credit  for 
payment  to  an  agent  of  the  real  estate  agents,  although  made 
after  he  was  discharged,  he  having  been  held  out  as  authorized 
to  receive  payments  due  on  contracts,  and  notice  of  the  with- 
drawal of  his  authority  not  having  been  given  to  the  purchaser. 
Meeker  v.  Manning,  162  111.  203,  44  N.  E.  397.  See  also  Sec.  335. 

Defendant  made  plaintiff  his  agent  for  the  sale  of  certain 
lands  for  cash,  all  the  price  above  a  certain  amount  to  belong 
to  plaintiff  as  his  compensation;  plaintiff  found  a  purchaser 
willing  to  pay  such  sum  in  cash  and  the  excess  to  plaintiff  on 
time.  Held,  that  such  sale  complied  with  the  terms  of  the 
agreement.  Van  Garder  v.  Sherman,  81  Iowa,  403,  46  N.  W. 
1087. 


THE   CONTRACT   OF  AGENCY.  113 

Sec.  54.    Contingency. 

In  an  action  by  a  broker  to  recover  commissions  for  selling 
land,  evidence  that  the  act  of  the  defendant  prevented  th.e  hap- 
pening of  the  contingency  on  which  payment  was  to  be  made  was 
inadmissible,  the  excuse  not  being  pleaded  by  the  plaintiff. 
Turner  v.  Lane,  93  N.  Y.  S.  1083,  47  Misc.  387.  A  broker  may  by 
special  agreement  with  his  principal  so  contract  as  to  make  his 
compensation  depend  upon  a  contingency  which  his  efforts  can 
not  control,  even  though  it  relates  to  the  acts  of  his  principal. 
Hind  v.  Henry,  36  N.  J.  L.  328 ;  Lassen  v.  Bayless,  125  Fed. 
744,  60  C.  C.  A.  512 ;  Berry  v.  Tweed,  93  Iowa,  296,  61  N.  W. 
858;  Stewart  v.  Fowler,  37  Kan.  677,  15  P.  918;  Flower  v. 
Davidson,  44  Minn.  46,  46  N.  W.  308;  S.  E.  Crowley  Co.  v. 
Myers,  69  N.  J.  L.  245,  55  A.  305 ;  Brown  v.  Grossman,  65  N. 
Y.  S.  1126,  53  App.  Div.  640;  Hodgkins  v.  Mead,  8  N.  Y.  S.  854. 
See  also  Sees.  40,  45,  65. 

A  written  agreement,  after  reciting  that  defendant  had  con- 
tracted to  sell  a  farm  to  one  H,  "contingent  on  the  allowance 
of  a  certain  pension  to  H,"  the  latter 's  ability  to  pay  the  price 
being  entirely  dependent  upon  the  allowance  of  said  pension 
claim,  provided  that,  in  case  the  sale  should  be  "perfected  by 
the  payment  of  said  purchase  money",  to  defendant,  "in  the 
event  said  pension  is  allowed,"  defendant  should  pay  a  speci- 
fied commission  to  plaintiff,  who  had  helped  bring  about  the 
contingent  sale,  but  if  the  "pension  should  not  be  allowed  and 
paid  over  to  defendant  plaintiff  should  receive  nothing;  the 
price  to  be  paid  for  the  farm  was  $12,000  and  the  pension 
claim  was  for  $9,500,  of  which  H  received  $6,000,  but  never 
paid  more  than  $1,000  to  defendant.  Held,  that  plaintiff  was 
not  entitled  to  a  commission.  Cobb  v.  Kenner  (Ch.  App.  Tenn.), 
42  S.  W.  277. 

The  owner  of  certain  real  estate  desiring  to  exchange  the 
same  for  city  property,  on  which  were  certain  mortgages, 
employed  plaintiffs,  as  brokers,  to  effect  the  exchange,  re- 
quiring as  a  condition  precedent  that  an  extension  of  time 
for  the  payment  of  the  mortgage  be  secured  within  ten  days. 
Plaintiffs  procured  defendant,  the  owner  of  the  city  property, 
to  endorse  a  written  acceptance  on  the  contract,  and  an  agree- 
ment to  pay  $1,000  commission  for  the  exchange,  which  was 


114  AMERICAN  LAW  REAL  ESTATE   AGENCY. 

never  consummated,  because  no  extension  of  time  for  payment 
of  the  mortgages  was  obtained.  Held,  that  it  was  plaintiffs' 
duty  to  procure  such  extension,  in  the  absence  of  which  he 
could  not  recover  commissions.  Herily,  Halfhill  &  Nicklin  v. 
Clagne,  120  P.  61,  17  Gal.  App.  511. 

Sec.  55.    Changes  in  contracts. 

A  contract  for  the  sale  of  lands  was  executed  by  the  owner 
and  left  with  his  agent  for  the  sale  of  such  land  for  delivery 
to  the  purchaser,  the  agent  altered  the  instrument  by  substi- 
tuting the  name  of  another  person,  and  changed  both  the 
consideration  and  the  rate  of  interest,  and  delivered  it  to  such 
other  person.  Held,  that  the  contract  so  delivered  was  not 
the  contract  of  the  owner.  Ballon  v.  Bergenson,  9  N.  D.  285, 
83  N.  W.  10.  See  also  Sec.  293. 

The  right  of  plaintiff,  a  real  estate  agent,  to  recover  on  his 
contract  for  the  sale  of  the  defendant's  interest  in  lands  for 
a  certain  sum  is  not  affected  by  a  change,  without  defendant's 
knowledge,  in  the  agreement  relative  to  the  purchase  of  the 
other  interests.  Good  v.  Smith,  44  Ore.  578,  76  P.  354.  Where 
a  letter  to  a  real  estate  broker  authorized  the  sale  of  certain 
property  for  $30,000,  subject  to  change  at  any  time,  but  no 
change  was  made  or  suggested  until  after  a  sale  was  nego- 
tiated, a  subsequent  change  and  a  refusal  of  the  owner  to  com- 
plete the  sale  at  the  price  first  named  was  ineffective  to  bar 
the  broker's  right  to  commissions.  Warren  Com.  &  Inv.  Co. 
v.  Hull  R.  E.  Co.,  120  Mo.  App.  432,  96  S.  W.  1038 ;  Millan  v. 
Porter,  31  Mo.  App.  563;  Howard  v.  Street,  93  A.  923,  125 
Md.  289;  Lamar  v.  King,  53  S.  279,  168  Ala.  285;  Meyer  v. 
Holland,  171  S.  W.  893,  116  Ark.  271;  Brown  v.  Hallgreenf 
129  N.  E.  429,  —  Mass.  Sup.  — .  See  also  Sec.  454.  Simmins 
v.  Oneth  (Mo.  App.  '10),  124  S.  W.  534. 

Where,  after  a  broker  entered  into  a  written  contract  with 
a  prospective  purchaser,  the  owner  was  substituted  as  a  party 
in  the  place  of  the  broker,  the  legal  liability  imposed  was  the 
same  as  if  the  contract  had  been  originally  made  by  the 
owner  with  such  purchaser  through  the  broker's  procuranee. 
Minder  &  Jorgenson  Land  Co.  v.  Brustuen,  140  N.  W.  251,  31 
S.  D.  211. 


THE  CONTRACT  OF  AGENCY.  115 

Where,  after  vendor  and  purchaser  had  entered  into  a 
binding  contract,  the  vendor  agreed,  at  the  broker's  solici- 
tation, to  an  alteration  of  the  contract  which  gave  the  pur- 
chaser a  mere  option,  which  was  never  exercised,  the  broker 
was  not  entitled  to  a  commission.  Waddle  v.  Smith,  108  N. 
E.  537,  58  Ind.  App.  587. 

A  contract  employing  a  broker  was  not  rendered  invalid 
by  his  insertion  of  a  provision  for  a  longer  term  of  employ- 
ment than  agreed  upon,  where  the  land-owner  failed  to  read 
the  written  contract,  but  no  misrepresentation  was  made  as 
to  the  contents  of  the  instrument,  and  the  broker  made  no 
statements  inducing  the  owner  to  sign  without  reading  the 
agreement.  Mayfield  Land  Co.  v.  Vin,  225  S.  W.  366,  —  Ky. 
Ct.  App.  — . 

Sec.  56.    Counter    Proposition. 

A  broker  employed  to  procure  a  purchaser  procured  one 
who  offered  a  specific  sum,  which  the  owner  rejected;  the 
owner  made  a  counter-proposition  which  the  purchaser  re- 
jected; thereafter  the  purchaser  offered  to  accept  the  counter- 
proposition,  but  the  owner  then  refused  to  sell.  Held,  that 
the  broker  was  not  entitled  to  his  commissions,  for,  on  the 
owner  rejecting  the  purchaser's  offer  and  making  a  counter 
offer,  which  the  purchaser  refused,  the  matter  was  at  an  end, 
and  no  subsequent  acceptance  of  the  counter-offer  could  re- 
vive it.  Compare  Sees.  72,  173.  Bailey  v.  Moorhead,  122  Mo. 
App.  268,  99  S.  W.  39;  Talcott  v.  Mastin,  20  Colo.  App.  488, 
79  Pac.  973.  Where  an  alleged  purchaser  replied  to  the  offer 
made  with  a  counter-proposition  that  could  not  be  construed 
as  an  acceptance  of  any  of  the  terms  of  sale  made  by  the 
owner  the  real  estate  agents  employed  to  procure  a  purchaser 
were  not  entitled  to  any  commissions.  Winters  v.  Portwood 
XTex.  Civ.  App.  '08),  109  S.  W.  388. 


CHAPTER  X. 

SECTION.  SECTION. 

57.    Deeds.  58.    Deeds,     their     execution     by 

agents. 

Sec.  57.    Deeds. 

Testimony  that  a  deed  was  tendered  to  the  principal  "in 
pursuance  of  an  agreement  between"  the  parties  is  sufficient, 
prima  facie,  to  sustain  a  finding  that  it  was  delivered  within 
thirty  days.  Beebe  v.  Roberts,  3  E.  D.  Smith  (N.  Y.),  194. 

Mere  insolvency  of  the  purchaser  does  not  defeat  the  broker's 
right  to  a  commission,  where  the  sale  contemplates  being  se- 
cured by  a  bond  and  deed  of  trust,  which  the  purchaser  is 
prepared  to  deliver.  Ross  v.  Fielding,  11  App.  Gas.  (D.  C.) 
442.  A  petition  which  alleges  that  the  sale  failed  because 
of  an  unsatisfied  deed  of  trust  on  the  property  which  the  defend- 
ant had  failed  to  release  or  have  cancelled,  is  not  defective 
in  failing  to  allege  that  the  deed  was  a  lien  on  the  prop- 
erty, or  that  defendant  refused  to  consummate  the  sale.  Ger- 
hart  v.  Peck,  42  Mo.  App.  644. 

A  deed  executed  by  the  principal  to  the  purchaser  after 
the  commencement  of  the  suit,  is  inadmissible  to  show  the 
principal's  ratification  of  the  agent's  contract.  Gelott  v.  Ridge, 
117  Mo.  553,  23  S.  W.  882.  The  defendant  having  assented 
to  the  terms  of  the  written  agreement  to  exchange  the  agree- 
ment and  deed  of  conveyance  were  competent  evidence  of  the 
sale  and  the  consideration  thereof.  Hewitt  v.  Brown,  21  Minn. 
163;  Folinsbee  v.  Sawyer,  157  N.  Y.  196,  51  N.  E.  994;  Levy 
v.  Crogan,  16  Daly,  137,  9  N.  Y.  S.  534;  Cannon  v.  Castleman, 
24  Ind.  App.  188,  55  N.  E.  111. 

The  defendant  was  the  owner  of  a  parcel  of  real  estate 
which  he  authorized  the  plaintiff  to  sell  for  a  certain  sum; 
nothing  was  said  relative  to  the  kind  of  deed  to  be  given; 
the  broker  found  a  purchaser  who  refused  to  complete  the 

116 


THE   CONTRACT   OF   AGENCY.  117 

transaction  unless  the  defendant  would  give  him  a  warranty 
deed,  notwithstanding  the  defendant  had  a  good  title  to  the 
property;  the  defendant  would  not  give  a  warranty  deed,  but 
offered  to  give  a  quit-claim  deed,  in  the  usual  form,  with  spe- 
cial covenants,  and  so  the  sale  was  not  executed.  Held,  that 
the  broker  was  not  entitled  to  commissions.  Garcelon  v.  Tib- 
letts,  84  Me.  148,  24  A.  797. 

In  an  action  for  a  broker's  commissions  for  negotiating  a 
purchase  which  defendant  refused  to  consummate,  a  deed,  and 
a  receipt,  purporting  to  have  been  signed  and  acknowledged 
by  the  owner,  and  proof  of  a  tender,  were  admissible  with 
other  proof,  as  tending  to  show  that  defendant  could  have 
obtained  the  property  at  his  offer  had  he  desired  to  do  so, 
where  no  objection  was  raised  to  their  form  or  genuineness. 
Hanna  v.  Espella,  148  Ala.  313,  42  S.  443. 

A  loan  agent  acting  for  B  secured  the  latter 's  note  and 
mortgage,  but  failed  to  effect  the  loan,  and,  while  still  hold- 
ing the  note  and  mortgage,  which  had  been  placed  on  record, 
bought  the  land  under  a  sheriff's  deed.  Held,  that  good  faith 
required  the  agent  to  secure  the  release  of  the  mortgage  be- 
fore taking  the  deed,  and  that  having  failed  to  do  so,  the 
deed  would  be  set  aside.  Smeltzer  v.  Lombard,  57  Iowa,  294. 
It  requires  an  instrument  under  seal  to  ratify  the  unauthor- 
ized deed  of  an  agent.  Spofford  v.  Hobbs,  29  Me.  148 ;  Drum- 
right  v.  Philpot,  16  Ga.  424;  Reese  v.  Medlock,  27  Tex.  120. 

Deed  of  a  guardian  executed  to  defraud  wards  set  aside  and 
mortgage  by  grantee  held  null  and  void.  Dormitzer  v.  German 
Sav.  &  Loan  Co.,  23  Wash.  132,  62  P.  862.  Deed  improperly 
secured  by  agent  set  aside.  Clark  v.  Bird,  72  N.  Y.  S.  769, 
66  App.  Div.  284.  Where  a  brokerage  contract  provided  that 
the  broker's  authority  to  sell  defendant's  land  should  con- 
tinue until  withdrawn  in  writing,  and  defendant  sold  the  land 
and  gave  a  deed  to  the  purchaser,  the  deed  was  not  such  a 
withdrawal  of  authority  before  such  sale  as  would  put  an  end 
to  the  contract  by  which  defendant  agreed  to  pay  a  commis- 
sion if  she  sold  the  property  herself  during  the  life  of  the 
contract.  Kimmel  v.  Skelly,  130  Cal.  555,  62  P.  1067.  Where 
a  broker's  authorization  to  sell  land  was  in  force  when  the 
sale  took  place  his  rights  were  not  affected  by  the  fact  that 


118  AMERICAN  LAW   EEAL  ESTATE  AGENCY. 

the  deed  did  not  pass  until  later.  Hull  v.  McCoy,  1  Cal.  App. 
159,  81  P.  1015. 

In  a  suit  against  a  real  estate  broker  and  lawyer,  by  a  for- 
mer customer  or  client,  to  vacate  certain  deeds  procured  by 
him  to  be  executed  by  her  in  his  interest,  and  for  the  can- 
cellation of  an  alleged  compromise  agreement  confirming  such 
deeds,  it  was  held  that,  on  a  review  of  the  evidence  showing, 
among  other  things,  that  the  defendant  had  purchased  one 
interest  from  the  complainant  for  $1,075,  worth  $2,500,  and 
that  shortly  prior  thereto  he  had  collected  over  $800  for  her, 
for  which  he  failed  to  account,  that  whether,  in  view  of  the 
fiduciary  relations  of  the  defendant  to  the  complainant,  the 
burden  was  on  him  to  show  the  validity  of  the  transactions, 
the  testimony,  as  a  whole,  was  sufficient  to  justify  vacating 
the  deeds  and  cancelling  the  agreement.  Holtzman  v.  Linton, 
27  App.  (D.  C.)  241. 

"Where  an  agent  lawfully  authorized  to  contract  to  sell  real 
estate  has  attempted  to  convey  the  same  by  deed  under  a  de- 
fective power  of  attorney,  the  deed  will  be  treated  in  equity 
as  a  valid  contract  for  the  sale  thereof.  Hersey  v.  Lambert, 
50  Minn.  373,  52  N.  W.  963.  See  also  Sec.  592. 

An  authorization  to  an  agent  to  sell  real  estate  for  $8,000, 
$3,000  cash,  entitles  him  to  the  agreed  compensation  if  he  se- 
cures a  purchaser  bound  to  the  agreed  terms,  as  the  $3,000 
cash  means  only  the  payment  of  such  sum  on  delivery  of  a 
deed  by  the  principal.  Goss  v.  Broom,  31  Minn.  484.  See 
also  Sees.  410,  410a.  An  agent  acting  under  parol  authority 
can  not  bind  his  principal  by  a  written  covenant  under  seal, 
signed  with  the  name  of  such  principal.  Such  an  instrument 
is  not,  in  any  sense,  the  deed  of  the  principal  unless  deliv- 
ered by  him.  Harshaw  v.  McKesson,  65  N.  C.  688. 

Broker  entitled  to  commission  although  the  deed  is  made  to 
the  purchaser  procured  by  the  broker  and  a  third  person.  Bound 
v.  Simlcins,  151  S.  W.  572,  —  Tex.  Civ.  App.  — . 

Broker  negotiating  a  real  estate  exchange  transaction  was  not 
authorized  to  accept  deed  without  due  authorization  by  grantees. 
Rogers  v.  Wills,  179  P.  676,  —  Or.  Sup.  — . 

Where  a  plaintiff  in  ejectment  has  received  a  deed  wherein  her 
name  had  been  inserted  as  grantee  after  the  deed  had  left  the 


THE  CONTRACT  OF  AGENCY.  119 

grantor's  hands,  and  no  apparent  authority  to  supply  or  fill  the 
deed  is  shown  to  have  been  in  the  broker,  plaintiff  was  bound  to 
know  the  nature  of  the  broker's  authority.  Redding  v.  Scharsble, 
177  K  W.  1019,  —  Minn.  Sup.  — . 

Sec.  58.    Deeds,  their  execution  by  agents. 

One  who  has  authority  from  another  to  execute  a  deed  or 
other  instrument  under  seal,  should  do  it  in  the  name  of  that 
other,  and  not  in  his  own  name,  even  as  agent.  Bobbins  v. 
Butler,  24  111.  428.  If  an  agent  sign  and  seal  a  deed  in  his 
own  name,  it  does  not  bind  the  principal,  though  in  the  body 
of  the  deed  it  is  stated  to  be  made  by  the  agent  in  behalf  of 
his  principal.  Bellas  v.  Hayes,  5  Serg.  &  R.  (Pa.)  427;  Fitch 
on  Real  Est.  Ag.,  p.  97,  citing  Townsend  v.  Hubbard,  4  Hill 
(N.  Y.),  351 ;  Townsend  v.  Corning,  23  Wend.  (N.  Y.)  435. 

A  deed  which  ran,  "Know  all  men  by  these  presents  that 
I,  A.  B.,  as  agent  for  C.  D.,  do  hereby  grant,  sell  and  convey," 
etc.,  and  signed  "A.  B.  for  C.  D."  was  held  to  be  the  deed 
of  "A.  B."  and  not  "C.  D."  Story  on  Ag.  Sec.  154.  Where 
an  agent  executed  a  deed  in  his  own  name,  although  he  cove- 
nanted "for  and  on  behalf"  of  his  principal,  he  was  held 
personally  bound,  and  not  his  principal.  Appleton  v.  Biriks, 
5  East  (Eng.),  148. 


CHAPTER  XI. 

SECTION.  SECTION. 

59.  Description  of  property.  67.  Payments  in  installments. 

60.  Drunkenness.  68.  Introduction  of  prospective  pur- 

61.  Fixed  price.  chaser. 

62.  Guardian  of  minor  or  insane  per-  69.  Indirect   acts   ineffectual    to    es- 

son.  tablish  contractual  relations. 

62a.  Appointment    of    Receiver    bars  69a.  Indirect    sale    which    authorizes 
broker's  commissions.  commissions  to  broker. 

63.  Undivided  interest.  70.    Information,  acted  on  by  broker 

64.  Interest  of  tenant  in  common.  not  establishing  contractual  re- 

65.  Contract  conditional  on  securing  lations. 

other  interests.  71.    Insurance   company,   broker   ob- 

66.  Consolidation  of  interests,  not  a  taming  loan  from,  not  agent  of. 

sale.' 

Sec.  59.    Description  of  property 

In  a  contract  with  a  real  estate  broker  for  the  sale  of  cer- 
tain property,  the  description,  "My  property,  48  Eldridge 
Court,"  is  sufficiently  definite  to  enable  the  broker  to  recover 
commissions,  the  contract  being  dated  at  Chicago,  where  there 
is  a  number  48  Eldridge  Court,  of  which  the  principal  is  a 
part  owner.  Weaver  v.  Snow,  60  111.  App.  624;  Powers  v. 
'Bohnslav  (Neb.  Sup.  '09),  120  N.  W.  942;  Schultz  v.  Griffin, 
8  N".  Y.  St.  Eep.  332;  rev.  121  1ST.  Y.  294,  24  N.  E.  480;  Dann- 
hauer  v.  Kaylor,  126  N.  E.  31,  —  Ind.  App.  — .  See  also  Sec. 
428a;  Tilden  v.  Smith  (S.  D.  Sup.  J10),  124  N.  W.  841.  In  a 
petition  for  a  commission  for  finding  a  purchaser  it  is  not  neces- 
sary to  particularly  describe  the  land.  Mullen  v.  Bower,  22  Ind. 
App.  294,  53  N.  E.  790;  McAllister  v.  Walker,  39  Minn.  535,  41 
N.  W.  107. 

A  real  estate  broker  authorized  to  sell  a  tract  of  land  spoken 

of  by  the  owner  as  being  on  the  line  of  a  certain  canal,  has  no 

authority  to  sell  it  by  any  other  description  than  that  by  which 

it  was  purchased  by  the  owner,  and  the  broker's  commissions  are 

120 


THE  CONTRACT  OP  AGENCY.  121 

not  earned  where  the  trade  falls  through  because  the  contract 
made  by  the  broker  with  the  intending  purchaser  described  the 
tract  as  containing  a  stated  number  of  acres  south  of  the  canal, 
whereas  it  was  described  in  the  conveyance  to  the  owner  as  being 
that  number  of  acres  south  of  the  center  of  the  canal.  Ward  v. 
Lawrence,  79  111.  295;  Scott  v.  Gage,  16  S.  D.  285,  92  N.  W.  37. 
See  also  Sees.  181,  476. 

A  memorandum,  "I  hereby  agree  to  pay  for  trading 

my  615-acre  farm  at  H.",  sufficiently  described  the  land  under 
Burns's  Ann.  Stat.  1914,  sec.  7463  (Acts  1901,  c.  67,  as  amended 
by  Acts  1913,  c.  219).  Herr  v.  McConnell,  179  N".  E.  496,  — 
Ind.  App.  — . 

A  written  agreement  to  give  a  broker  all  over  $90  per  acre  to 
sell  land,  "$3,000  cash,  *  *  *  balance  at  5%  interest/'  without 
stating  when  and  how  the  balance  was  to  be  paid,  was  sufficient 
under  Comp.  Laws  1915,  sec.  11981,  subd.  5.  Cochran  v.  Sta- 
man,  167  N.  W.  1015,  201  Mich.  630. 

Under  Eem.  Code  1915,  sec.  5289,  contract  agreeing  to  pay 
broker  a  commission  for  furnishing  a  buyer  or  party  who  would 
exchange  for  "my  stock  ranch  located  in  sees.  9,  17  and  21," 
etc.,  was  unenforceable  for  want  of  sufficient  land  description. 
Rogers  v.  Lippy,  169  P.  858,  99  Wash.  312,  L.  E.  A.  (N.  S.) 
1918  C,  583. 

Under  Eem.  Code  1915,  sec.  5289,  agreement  to  pay  commis- 
sion for  exchange  of  "my  *  *  *  667  acres  hay  ranch,  located 
near  Cataldo,  Idaho,"  was  unforceable  for  want  of  sufficient  land 
description.  Nance  v.  Valentine,  169  P.  862,  99  Wash.  323. 

Agreement  to  pay  commission,  provided  "the  exchange  is 
made,"  could  not  be  considered  as  an  unconditional  promise  to 
pay  for  services  rendered,  so  that  it  could  be  enforced,  regardless 
of  insufficiency  of  description  of  the  realty,  under  Eem.  Code 
1915,  sec.  529.  Id. 

Much  greater  liberality  is  allowed  in  construing  and  correcting 
a  defective  description  in  a  broker's  contract  than  in  a  deed  to 
land,  and  such  contracts  will  not  be  declared  void  merely  be- 
cause of  a  defect,  uncertainty  or  ambiguity  in  describing  prop- 
erty to  be  sold  or  exchanged,  where  the  defect  can  be  cured  by 
allegation  and  proof  of  extrinsic  facts  and  circumstances.  Mac- 
Tcnight  v.  Davitt,  174  P.  77,  —  Cal.  App.  — . 


122  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

See.  60.    Drunkenness  in  its  relation  to  competency  to  make 
a  contract. 

Mere  excitement  from  the  use  of  intoxicating  liquors  is  not 
such  drunkenness  as  will  enable  a  party  to  avoid  his  con- 
tract; such  excitement  and  drunkenness  must  be  excessive  and 
absolute,  so  as  to  suspend  the  reason  and  create  impotence  of 
mind  at  the  time  of  entering  into  the  contract;  absolute  drunk- 
enness does  not  mean  complete  insensibility,  and  the  use  of 
this  phrase  in  the  instruction  does  not  render  it  objectionable. 
Cavender  v.  Waddingham,  5  Mo.  App.  457. 

Sec.  61.    Fixed  price. 

Where  the  principal  makes  a  sale  to  a  purchaser  found  by 
the  broker,  having  availed  himself  of  the  broker's  services,  he 
is  liable  for  the  commission,  although  the  sale  is  made  at  a 
lower  price  than  that  originally  proposed  by  him  to  the  broker. 
Crook  v.  Forst,  116  Ala.  395;  22  S.  540;  Williams  v.  Bishop, 
11  Colo.  App.  378,  53  P.  239;  Schegal  v.  Allerton,  65  Conn. 
260,  32  A.  363;  Baker  v.  Murphy,  105  111.  App.  151;  Loehde 
v.  Halsey,  88  111.  App.  452;  McConaughty  v.  Mehannah,  28 
111.  App.  169;  Plant  v.  Thompson,  42  Kan.  664,  22  P.  726; 
Baits  v.  Shepherd,  37  Kan.  20,  14  P.  496;  Hulachek  v.  Haz- 
zard,  83  Minn.  437,  86  N.  W.  426;  McCormack  v.  Henderson, 
100  Mo.  App.  647,  75  S.  W.  171;  Stinde  v.  Bleach,  42  Mo. 
App.  578;  Wetzel  v.  Wagoner,  41  Mo.  App.  509;  Martin  v. 
Silliman,  53  N.  Y.  615;  Martin  v.  Fegan,  88  N.  Y.  S.  472,  95 
App.  Div.  154;  Levy  v.  Coogan,  16  Daly,  137,  9  N.  Y.  S.  534; 
Chtiton  v.  Butler,  1  E.  D.  Smith  (N.  Y.),  150;  HoUs  v.  Ed- 
gar, 51  N.  Y.  S.  1120,  23  Misc.  618 ;  Gold  v.  Serrill,  26  N.  Y. 
S.  5,  6  Misc.  124;  Steinfeld  v.  Strom,  63  N.  Y.  S.  966,  31 
Misc.  167;  Keys  v.  Johnson,  68  Pa.  St.  42;  Oliver  v. 
Katz,  131  Wis.  409,  111  N.  W.  509;  Byrd  v.  Frost  (Tex.  Civ. 
App.  '94),  29  S.  W.  46;  Barnes  v.  German  Sav.,  etc.,  Soc., 
21  Wash.  448,  58  P.  569;  Holland  v.  Vinson,  124  Mo.  App. 
417,  101  S.  W.  1131.  Unless  the  right  to  a  commission  is 
made  conditional  upon  a  sale  being  effected  at  the  price  fixed 
in  the  broker's  authority.  Armes  v.  Cameron,  19  D.  C.  435; 
Buhl  v.  Noe,  51  111.  App.  622 ;  Schwartze  v.  Yearly,  31  Md. 
270;  Child  v.  Ptomey,  17  Mont.  502,  43  P.  714;  Briggs  v.  Eowe, 


THE  CONTRACT  OF  AGENCY.  123 

1  Abb.  Dec.  (N.  T.),  189,  4  Keyes,  424;  Steinfeld  v.  Storm,  63 
N.  Y.  S.  966,  31  Misc.  167;  Sargent  v.  Story  (Tex.  Civ.  App. 
'01 ),  61  S.  W.  977;  Me  Arthur  v.  Slosson,  53  Wis.  41,  9  N. 
W.  781.  See  also  Sec.  133. 

A  broker  who  has  the  exclusive  right  for  sixty  days  to  sell 
at  a  fixed  price  certain  real  estate,  can  not  bind  his  prin- 
cipal by  a  contract  in  which  the  time  for  the  completion 
of  the  purchase  and  the  payment  of  the  price  is  extended  thirty 
days  after  the  expiration  of  the  sixty  days.  Smith  v.  Mc- 
Cann,  205  Pa.  57,  54  A.  498.  See  Sec.  14  for  time  beyond 
the  limit  allowed  to  examine  the  title. 

Sec.  62.    Guardian  of  minor  or  insane  person. 

Where  in  employing  plaintiff  as  a  real  estate  broker  to  ef- 
fect a  sale  of  land,  defendant  acted  as  the  guardian  of  a  minor 
and  had  no  personal  or  private  interest  in  the  property,  all 
of  which  was  known  to  the  plaintiff,  and  that  he  never  made 
any  contract  to  pay  individually  for  making  the  sale,  defend- 
ant can  not  be  charged  individally  for  a  commission.  Hudson 
v.  Scott,  125  Ala.  172,  28  S.  91;  Groeltz  v.  Armstrong,  125 
Iowa,  39,  99  N.  W.  128. 

A  guardian  by  fraudulent  proceedings  in  court  obtained 
an  order  and  sold  property  inherited  by  his  ward,  and  his 
vendee,  who  participated  in  the  fraud,  afterwards  mortgaged 
the  property  to  secure  a  large  loan;  the  mortgage  was  made 
through  a  broker,  and  the  mortgagee  testified  that  the  broker 
was  defendant's  agent  for  the  service  of  process  and  for  no 
other  purpose,  and  that  defendant  dealt  with  him  as  with 
other  brokers;  the  broker  passed  on  the  value  of  the  securi- 
ties, fixed  the  terms  of  the  loans,  subject  to  the  mortgagee's 
approval,  looked  after  the  title,  employed  attorneys  to  exam- 
ine the  same,  received  the  money  and  paid  it  to  the  mort- 
gagors, and  in  letters  to  the  mortgagee  spoke  of  the  loans 
as  made  "by  us;"  in  negotiating  the  loan  in  question  he  was 
associated  with  a  third  person,  and  attorneys  were  employed 
by  them  who  knew  of  such  fraudulent  probate  proceedings, 
and  that  the  proceedings  were  made  for  the  purpose  of  show- 
ing a  clear  title  to  the  mortgaged  property.  Held,  sufficient 
to  show  that  the  broker  was  the  agent  of  the  mortgagee  as 


124  AMERICAN  LAW   REAL  ESTATE  AGENCY. 

to  make  notice  of  the  fraud  to  him  sufficient  notice  ,to  the 
mortgagee  to  prevent  the  defense  of  good  faith  by  it  to  an 
action  by  the  ward  to  set  aside  such  sale  and  mortgage  as 
fraudulent.  Dormitzer  v.  German  Sav.  &  Loan  Soc.,  23  Wash. 
132,  62  P.  862. 

Where  the  Fairmount  Park  Commission  of  Philadelphia  agreed 
with  a  broker  to  purchase  land  of  his  principal,  the  fact  that  the 
Commission  had  the  board  of  viewers  approve  the  negotiations 
in  describing  the  acreage  and  the  amount  of  damages,  and  had 
this  report  confirmed  by  the  Court,  does  not  affect  the  owner's 
liability  to  pay  a  commission,  and  especially  is  this  the  case 
where  the  owner,  the  guardian  of  an  insane  person,  secured  the 
approval  of  the  court  to  the  price  to  be  received,  subject  to  a 
designated  broker's  commission,  and  actually  received  the  pur- 
chase money.  WarnocJc  v.  Phila.  Trust  Co.,  69  Pa.  Super.  Ct. 
589. 

Sec.  62a.    Broker  not  entitled  to  commission  on  sale  made 
after  appointment  of  a  Receiver. 

A  broker  can  not  recover  on  contract  with  owners  of  property, 
whereby  he  was  to  produce  a  buyer  at  stipulated  price,  where  he 
knew  that  a  Eeceiver  had  been  appointed  to  sell  the  land  at  the 
time  the  broker's  contract  had  been  entered  into,  such  appoint- 
ment having  terminated  the  owners'  right  to  stipulate  terms  of 
sale.  Sleigh  v.  Stanly,  204  S.  W.  700,  —  Tex.  Civ.  App.  — . 

Sec.  63.    Undivided  interest. 

"Where  a  power  of  attorney  authorized  an  agent  "to  grant, 
bargain  and  sell  certain  lands,  or  any  part  or  parcel  there- 
of, for  such  sum  or  price,  on  such  terms  as  to  him  shall  seem 
meet,  and  for  me  and  in  my  name  to  make,  etc.,  deeds  for 
the  same,  either  with  or  without  covenants  of  warranty;"  it 
was  held  that  the  agent  had  authority  to  sell  on  reasonable 
credit,  had  authority  to  receive  payment,  and  a  payment  to 
him  was  a  good  payment  to  the  principal;  if  circumstances 
rendered  it  favorable  for  the  interest  of  his  principal  he  might 
include  other  valuable  considerations  besides  money  in  the 
consideration,  and  might  sell  an  undivided  interest  in  the 
property.  Carson  v.  Smith,  5  Minn.  78. 


THE  CONTRACT  OF  AGENCY.  125 

See.  64.    Interest  of  tenant  in  common. 

Defendant  was  tenant  in  common  of  certain  premises  of 
which  he  wished  to  dispose,  and  employed  plaintiff  to  sell  his 
interest  for  him;  plaintiff  attempted  to  negotiate  a  sale  to  de- 
fendant's co-tenant,  but  was  unable  to  get  any  definite  price 
or  terms  from  defendant;  finally,  at  plaintiff's  suggestion,  the 
co-tenant  himself  saw  defendant,  and  a  settlement  was  reached 
by  which  defendant  conveyed  the  larger  part  of  the  premises 
to  the  co-tenant,  but  retained  a  small  tract  for  himself  for 
his  own  benefit  and  according  to  his  own  desires.  Held,  that 
the  deal  as  consummated  amounted  to  a  sale  within  the  mean- 
ing of  the  contract  with  plaintiff  for  commissions.  Burden 
v.  Briquilet,  125  Wis.  341,  104  N.  W.  83;  Anderson  v.  Lewis, 
64  W.  Va.  297,  61  S.  E.  160. 

Sec.  65.    Contract  conditional  on  securing  other  interests. 

Where  the  real  estate  agents  and  the  parties  to  the  pro- 
posed exchange  of  properties  understood  that  the  agreement 
for  the  exchange,  and  any  right  to  commissions,  were  depend- 
ent upon  the  defendants'  acquiring  outstanding  interests  in 
the  property  they  proposed  to  exchange,  and  that  their  ac- 
ceptance of  the  terms  of  the  exchange  offered  by  the  other 
parties  was,  in  fact,  conditional  on  their  acquiring  such  in- 
terests, commissions  can  not  be  recovered  of  defendants,  their 
failure  to  acquire  such  interests  not  having  been  by  their  pro- 
curement or  connivance.  Rieger  v.  Merrill,  125  Mo.  App.  541, 
102  S.  W.  1072.  See  also  Sees.  45,  108. 

Sec.  66.    Consolidation  of  interests  not  a  sale. 

Where,  to  acquire  means  of  irrigation  for  lands  so  as  to 
make  them  salable,  they  were  transferred  to  a  land  irrigation 
company,  the  owner  taking  stock  and  bonds  therefor,  the  trans- 
action was  a  consolidation  of  interests,  and  not  a  sale  of  the 
land  within  the  contract  entitling  plaintiff  to  commissions  for 
services  in  effecting  a  sale  of  the  lands.  Close  v.  Browne,  230 
111.  228,  82  N.  E.  629. 


126  AMEHICAN   LAW   EEAL   ESTATE   AGENCY. 

Sec.  67.    Payment  in  installments. 

.Where  a  vendor  agreed  to  pay  his  agent's  commissions  for 
selling  the  land  out  of  the  purchase  money  as  it  was  paid  in 
proportionate  amounts,  and  on  foreclosure  of  the  purchase 
money  mortgage,  the  vendor  bids  in  the  property  for  the  full 
balance  then  unpaid  and  costs,  the  whole  commission  becomes 
due  on  the  confirmation  of  such  foreclosure  sale.  Crane  v. 
Eddy,  191  111.  645,  61  N.  E.  431,  85  Am.  St.  Rep.  384. 

In  an  action  for  a  broker's  commissions,  evidence  that  de- 
fendant applied  to  witness  to  know  what  to  do  concerning 
the  proposed  purchaser's  proposition  to  pay  for  the  land  in 
monthly  installments,  the  witness's  advice  given  in  response, 
was  inadmissible.  Leuschner  v.  Patrick  (Tex.  Civ.  App.  '07), 
103  S.  W.  664. 

A  contract  to  perform  a  given  duty  for  a  given  sum  would 
be  entire,  but  a  contract  to  perform  the  same  duty  for  a  given 
sum,  to  be  paid  in  installments  as  the  performance  progressed, 
would  be  severable,  so  far  as  the  right  to  recover  the  several 
installments  is  concerned.  Mechem  on  Agency,  Sec.  634. 

An  agent  to  sell  land  may  agree  that  the  payment  of  his  com- 
mission shall  be  dependent  on  the  purchaser's  paying  either  a 
specified  part  or  all  of  the  price.  Martineau  v.  Hanson,  155  P. 
432,  47  Utah,  549. 

Sec.  68.    Introduction  of  prospective  purchaser. 

A  broker  is  not  entitled  to  compensation  for  merely  intro- 
ducing the  vendee,  unless  his  character  as  such  agent  was  dis- 
closed to  the  principal  at  the  time  of  contract.  Keener  v. 
Harrod,  2  Md.  63;  Bassford  v.  West,  124  Mo.  App.  248,  101 
S.  "W.  610.  See  also  Sees.  450,  532.  Where  a  real  estate 
broker  was  not  acquainted  with  the  purchaser,  and  did  not 
introduce  him  to  the  seller,  the  effectiveness  of  the  broker's 
instrumentality  in  bringing  about  the  sale  must  be  affirma- 
tively proved  to  entitle  him  to  commissions.  Halterman  v. 
Leining,  90  N.  Y.  S.  1093,  45  Misc.  397. 

While  an  agent  employed  to  sell  land  must  find  a  purchaser 
ready,  able  and  willing  to  buy  on  the  terms  proposed  before 
he  has  earned  his  commissions,  that  rule  does  not  apply  to 
one  who  is  only  hired  to  render  the  preliminary  service  of 


THE   CONTRACT   OF   AGENCY.  127 

introducing  the  seller  to  persons  who  shall  afterwards  buy. 
Mayer  v.  McCann,  136  111.  App.  501,  affirmed  232  111.  507,  83 
N".  E.  1042;  Walker  v.  Sterry,  130  N.  Y.  Sup.  801,  146  App. 
Div.  332. 

To  entitle  a  broker  to  recover  commissions  on  a  sale  of  land 
direct  by  the  owner  to  a  purchaser  originally  introduced  to  the 
owner  by  the  broker,  the  latter  must  show  not  only  that  he  intro- 
'duced  the  buyer,  but  affirmatively  that  the  buyer  was  induced  to 
apply  direct  to  the  owner  by  the  means  employed  by  the  broker. 
English  v.  Wm.  George  Realty  Co.  (Tex.  Civ.  App.  '09),  117  S. 
W.  996.  See  Sec.  450. 

That  the  party  presented  by  plaintiff,  a  broker,  entered  into  a 
lease  with  defendant,  will  not  support  a  recovery  of  a  commission 
unless  plaintiff  was  employed  to  procure  a  tenant.  Floore  v.  J.  T. 
Burgher  &  Co.,  142  S.  W.  939,  judg.  aff.  174  S.  W.  819,  —  Tex. 
Sup.  — . 

A  broker's  mere  introduction  of  one  who  thereafter  purchases 
from  the  owner  does  not  entitle  him  to  a  commission  where  the 
purchaser  was  fully  advised  as  to  the  property  and  already  de- 
termined to  purchase  it.  Pitts  v.  Pitts,  164  P.  105,  —  Okl. 
Sup.  — . 

Broker  having  the  same  surname  as  the  owner,  and  who,  by 
mistake  of  intending  purchaser,  was  brought  in  contact  with 
purchaser,  and  who  did  nothing  but  direct  the  purchaser  to  the 
true  owner,  who  thereafter  negotiated  a  sale  of  the  property,  was 
not  entitled  to  a  commission.  Id. 

If  a  realty  broker  introduces  another  broker  to  an  owner  as 
a  purchaser,  and  no  sale  was  made  to  the  other  broker,  the  in- 
troducing broker  is  not  entitled  to  a  commission  on  a  sale  sub- 
sequently made  by  the  other  broker  under  contract  entered  into, 
in  good  faith,  by  the  owner,  with  him  as  a  broker,  the  owner  not 
having  bound  himself  to  the  first  broker  not  to  sell  the  land  him- 
self nor  to  refrain  from  selling  through  another  broker.  Brannen 
v.  Poole,  218  S.  W.  186,  —  Ark.  Sup.  — . 


128  AMERICAN  LAW   REAL  ESTATE  AGENCY. 

Sec.  69.    Indirect  acts  of  broker  ineffectual  to  establish  con- 
tractual relations. 

The  owner  of  a  house  having  received  from  his  son  a  tele- 
gram asking  his  lowest  price  for  the  house,  which  was  sent  at 
the  instigation  of  a  real  estate  broker,  answered  stating  the 
price  he  would  take,  no  sale  was  made  to  the  person  whom  the 
broker  had  in  view  as  a  purchaser,  on  account  of  certain  in- 
cumbrances  on  the  property;  eight  months  afterward  the  same 
person,  through  another  broker,  purchased  the  house,  the  in- 
cumbrances  having  been  removed.  Held,  that  the  former 
broker  was  not  entitled  to  a  commission  for  effecting  the  sale. 
Chandler  v.  Button,  5  Daly  (N.  Y.),  112.  See  also  Sec.  448. 
Compare  Sec.  446. 

An  agent,  to  procure  a  purchaser  of  property,  can  not  re- 
cover commissions  for  effecting  a  sale,  on  proof  that  the  pur- 
chaser, without  solicitation  by  the  agent,  became  aware  that 
the  property  was  for  sale  by  overhearing  negotiations  between 
the  agent  and  another.  Monson  v.  Carlstrom  (Iowa  Sup.  '09), 
119  N.  W.  606. 

Where  brokers  took  the  purchaser"  to  inspect  other  farms,  and 
incidentally  passed  defendant's  farm,  but  disparaged  the  pur- 
chaser from  buying  the  same,  they  were  not  the  procuring  cause 
of  the  sale  so  as  to  be  entitled  to  a  commission,  where  the  pur- 
chaser subsequently  returned  and  bought  the  farm  directly  from 
defendant.  Wheelan  v.  Hunt,  133  P.  52,  37  Okl.  523. 

Where  defendant  had  listed  his  farm  with  plaintiff,  a  broker, 
for  sale,  but  had  subsequently  withdrawn  it,  and  the  broker 
thereafter  met  defendant  while  showing  another  farm  to  a  cus- 
tomer, introduced  the  customer  to  the  defendant,  stating  that  if 
the  farm  he  was  about  to  show  him  did  not  suit  him  he  would 
show  him  defendant's  farm,  the  broker  having  asked  defendant 
if  his  farm  was  still  for  sale,  defendant  replying  in  the  affirmative, 
and  telling  plaintiff  to  "bring  him  on,"  such  facts  were  not  suffi- 
cient to  sustain  a  finding  that  he  was  re-employed,  defendant 
having  sold  his  farm  to  such  customer  following  the  conversation. 
Browning  v.  Dowell,  218  S.  W.  45,  —  Tex.  Civ.  App.  — . 


THE  CONTRACT  OP  AGENCY.  129 

Sec.    69a.     Indirect   sale   which   authorizes   commissions   to 

broker. 

A  broker  "indirectly"  interested  the  purchaser  in  the  prop- 
erty, and  so  was  entitled  to  the  commissions  provided  for, 
though  the  sale  was  made  by  the  owner,  unless  to  one  not  in- 
terested in  the  property  through  the  broker  "in  any  way, 
directly  or  indirectly,"  where  the  broker  brought  the  prop- 
erty to  the  attention  of  and  showed  it  to  G,  and  G  then  gave 
the  information  so  acquired  to  P,  and  P  acted  thereon,  in- 
spected the  property  and  reported  his  information  to  C,  who, 
acting  on  such  information,  went  to  the  property  and  exam- 
ined it,  and  thereupon  bought  it  directly  of  the  owner.  Sho- 
ler  v.  Dean  (Mont.  Sup.  '09),  102  P.  323. 

Sec.  70.    Information,  acted  upon  by  broker,  not  establishing 
contractual  relations. 

Where  the  owners  of  real  estate  expressly  refused  to  em- 
ploy the  plaintiff,  a  broker,  in  selling  their  property,  it  was 
held  that  the  mere  fact  that  the  plaintiffs,  after  ascertaining 
the  price  charged  for  the  property,  sent  a  purchaser  to  whom 
a  sale  was  effected,  did  not  entitle  the  broker  to  recover  com- 
missions. Pierce  v.  Thomas,  4  E.  D.  Smith  (N.  Y.),  354.  See 
also  Sec.  178. 

Sec.  71.    Insurance  company,  broker  obtaining  loans  from  not 

agent  of. 

The  fact  that  a  loan  agent  who  is  in  the  habit  of  sending 
applications  to,  and  obtaining  loans  from,  an  insurance  com- 
pany as  well  as  other  parties,  is  the  agent  of  sucn  company 
for  the  purpose  of  procuring  insurance,  does  not  constitute 
him  their  agent  in  respect  to  loans  obtained  by  him  from  them. 
Mass.  Mut.  Life  Ins.  Co.  v.  Boggs,  121  111.  119.  13  N.  E.  550. 


CHAPTER  XII. 


SECTION. 

72.  Written  proposition  from  pro- 
poser and  acceptance  by  agent 
makes  binding  contract. 
On  failure  of  vendor  to  re-execute 
contract  after  purchaser  mate- 
rially altered,  no  meeting  of 
minds. 

Signature  of  principal  by  agent. 
Signature  of  principal  by  agent 
should  be  followed  by  his  as 
agent. 

Signature  of  B,  as  attorney  for 
parties  of  first  part,  failed  to 
bind  the  principal. 

76a.  Agent    contracting    as    principal 
personally  liable  as  such. 

76b.  Broker  entitled  to  commissions  for 
sale  for  fellow  broker. 

77.    Signature   placed   at   bottom   or 
top  suffices. 


73. 


74. 
75. 


76. 


SECTION. 

78.  The  word   "subscribed"   equiva- 

lent to  "signed." 

79.  In  some  States  contract  to  di- 

vide commissions  must  be  in 

writing. 
79a.  Unless  barred  by  statute  broker 

may  be  authorized  by  parol  to 

sell  or  lease  real  property. 
79b.  In  certain  States  contracts  for  the 

sale  of  lands  must  be  in  writing. 
79c.  Contract  may  be  put  in  writing 

after  performance. 
79d.  Action  ex  delicto  maintainable  on 

parol  contract. 

80.  Broker    on    procuring    customer 

sending  telegram  to  owner, 
Telegraph  Co.,  not  agent  as 
to  notice. 

81.  Telegram  must  reach  owner  be- 

fore he  signs  contract  with 
another  or  it  is  too  late. 

Sec.  72.    Written  proposition  from  proposer  and  acceptance  by 

agent  makes  binding  contract. 

A  written  proposition  to  employ  one  as  agent  to  sell  land 
signed  by  the  proposer  and  accepted  by  the  agent,  though 
not  signed  by  him,  makes  a  binding  contract  of  agency  en- 
forceable against  both.  Rowan  v.  Hull,  55  W.  Va.  335,  47 
S.  E.  92.  Compare  Sec.  56. 


Sec.  73.  On  failure  of  vendor  to  re-execute  contract  after  pur- 
chaser materially  altered  the  same,  there  was  no  meeting 
of  minds. 

Where  a  broker,  in  an  action  for  services  in  procuring  de- 
fendant a  purchaser  for  land,  claimed  that  both  parties  had 
signed  and  delivered  duplicate  contracts  for  sale,  and  defend- 
130 


THE  CONTRACT  OP  AGENCY.  131 

ant  claimed  that  after  he  signed  the  papers  the  purchaser 
took  them  and  signed  only  after  making  material  alterations 
therein,  and  that  he  thereupon  refused  to  re-execute  the  con- 
tract as  altered,  and  that  they  were  never  delivered,  it  was  error 
to  refuse  an  instruction  that  if,  after  defendant  executed  the 
contracts,  they  were  altered  before  the  purchaser  executed 
them,  and  were  never  subsequently  re-executed,  there  was  no 
meeting  of  minds.  Bruce  v.  Hurlbut,  66  N.  Y.  S.  1127,  54 
App.  Div.  616.  See  also  Sec.  33. 

Sec.  74.    Signature  of  principal  by  agent,  in  his  presence,  ia 
that  of  principal. 

"Where  a  principal's  name  is  signed  by  the  agent  at  the 
request  of  the  principal,  and  in  his  presence,  the  signature 
is  deemed  that  of  the  principal  himself,  since  the  agent  does 
not  act  in  that  capacity,  but  merely  as  the  hand  or  amanuensis 
of  the  principal,  and  in  such  case  the  agent  signs  the  prin- 
cipal's name  only  as  if  the  principal  had  himself  signed  it. 
Gardner  v.  Gardner,  5  Gush.  (Mass.)  483;  R.  I.  &  St.  L.  E. 
Co.  v.  Shunick,  65  111.  223;  Meyer  v.  King,  29  La.  Ann.  567, 
569.  Compare  Sec.  18. 

Sec.  75.    Signature  of  principal  by  agent  should  be  followed 

by  his  as  agent. 

Only  the  name  of  the  principal  should  be  used  in  the  body 
of  the  instrument,  as  one  of  the  contracting  parties,  the  agent 
should  then  sign  the  principal's  name  to  it,  and  then  his  own 
as  agent.  Hears  v.  Morrison,  1  Breese  (111.),  172;  Bingham 
v.  Stewart,  13  Minn.  106;  Smith  v.  Morse,  9  Wall.  (U.  S.)  76. 

Sec.  76.    Signature  of  B,  as  attorney  for  parties  of  first  part, 
failed  to  bind  the  principal. 

Where  a  contract  for  the  sale  of  lands  stated  in  the  body 
of  it  that  it  was  made  by  the  parties  of  the  first  part,  with- 
out naming  them,  by  B,  their  attorney,  the  concluding  clause 
was,  "In  witness  whereof  said  B,  as  attorney  for  the  parties 
of  the  first  part,  and  said  parties  of  the  second  part,  have 
hereunto  set  their  hands  and  seals,"  and  B.  signed  his  own 
name  only,  with  a  single  seal,  it  was  held  that  the  parties  of 
the  first  part  were  not  bound,  and  that  the  instrument  should 


132  AMEBICAN  LAW  EEAL  ESTATE  AGENCY. 

have  been  executed  in  the  name  of  the  principals,  and  pur- 
port to  be  sealed  with  their  seals  instead  of  the  seal  of  the 
attorney.  Townsend  v.  Hubbard,  4  Hill  (N.  Y.),  351;  Town- 
send  v.  Corning,  23  Wend.  (N.  Y.)  435. 

Sec.  76a.    Agent  contracting  as  principal  personally  liable  as 

such. 

"Where  an  agent  contracts  as  principal,  and  does  not  dis- 
close his  agency,  he  is  personally  liable  as  principal.  Loehde 
v.  Halsey,  83  111.  App.  452.  See  also  Sees.  43,  383. 

Sec.  76b.    Broker  entitled  to  commission  from  fellow  broker 
on  sales  of  land  for  the  latter. 

Defendant,  a  real  estate  agent,  contracted  with  plaintiff,  also 
a  real  estate  agent,  to  pay  plaintiff  $1.25  per  acre,  or  one-half 
of  all  commissions  made  by  defendant,  on  all  lands  sold  to  pur- 
chasers brought  to  defendant's  office  by  plaintiff,  such  commis- 
sions to  be  paid  to  plaintiff  as  soon  as  the  defendant  should  re- 
ceive his  commissions  from  said  sales,  and  that  plaintiff  would 
bring  all  his  land  buyers  to  defendant.  Held,  that  under  the 
contract  plaintiff's  right  to  compensation  was  not  limited  to  sales 
made  in  which  commissions  were  actually  paid  in  money  and  re- 
ceived by  defendant,  but  if  a  sale  were  made  by  defendant  so 
that  commissions  could  not  be  collected  on  the  sale,  plaintiff 
would  be  entitled  to  compensation  at  the  rate  of  $1.25  per  acre  on 
the  land  sold,  and  was  entitled  to  such  compensation  under  the 
contract  where  defendant  himself  purchased  land  of  a  third  per- 
son, and  subsequently  entered  into  a  binding  contract  for  sale 
thereof  with  a  purchaser  furnished  by  plaintiff.  Park  v.  McCul- 
ley,  131  N.  W.  509,  27  S.  D.  493. 

Sec.  77.    Signature  placed  at  bottom  or  top  a  sufficient  compli- 
ance with  statute. 

The  requirement  of  a  statute  that  a  contract  for  the  sale 
of  lands  between  a  broker  and  the  owner  be  subscribed  by 
both  parties  is  met  when  the  signature  of  the  parties  is  placed 
thereon  to  authenticate  and  give  effect  to  the  contract,  whether 
placed  at  the  bottom,  the  top,  or  in  the  body  of  the  instru- 
ment. Myers  v.  Moore,  78  Neb.  448,  110  N.  W.  989. 


THE  CONTBACT  OP  AGENCY.  133 

Sec.  78.    Signature,  the  word  "subscribed"  is  equivalent  to 

"signed." 

The  word  "subscribed,"  as  used  in  a  statute  requiring  a 
contract  for  the  sale  of  lands,  between  a  broker  and  the  owner, 
to  be  in  writing,  subscribed  by  both  parties,  is  synonymous 
with  the  word  "signed."  Id. 

Sec.  79.    In  some  States  a  contract  to  divide  commissions  with 

a  sub-agent  must  be  in  writing. 

Burns'  Anno.  Stat.  1901,  Sec.  6629a,  declares  that  no  con- 
tract for  the  payment  of  any  sum  as  commissions  for  finding 
a  purchaser  for  the  real  estate  of  another,  shall  be  valid  un- 
less the  same  shall  be  in  writing,  signed  by  the  owners  of 
the  real  estate  or  his  legally  appointed  and  duly  qualified 
representative.  Held,  that  such  section  did  not  invalidate  a 
written  contract  between  real  estate  brokers  by  which  one  of 
them  agreed  to  pay  the  other  one  dollar  per  acre  for  finding 
a  purchaser  for  land  which  the  first  broker  had  for  sale.  Prov- 
ident T.  Co.  v.  Darraugh,  168  Ind.  29,  78  N.  E.  1030.  And 
that  letters  qualifying  the  original  authority  to  pay  plaintiff 
$1  per  acre  for  finding  a  purchaser  did  not  constitute  a  re- 
vocation of  the  authority.  Id. 

Sec.  79a.  Unless  barred  by  statute,  broker  may  be  authorized 
by  parol  to  make  a  valid  contract  to  sell  or  lease  real  prop- 
erty. 

Except  in  those  States  where  the  statutes  expressly  require 
the  authority  to  be  in  writing,  an  agent  may  be  authorized 
by  parol  to  make  a  valid  contract  for  the  sale  or  the  leasing 
of  his  principal's  lands.  Mechem  on  Ag.  Sec.  89. 

Sec.  79b.    In  certain  States  a  contract  for  the  sale  of  lands 

must  be  in  writing. 

Alabama,  Arkansas,  California,  Colorado,  Illinois,  Michigan, 
Missouri,  Nebraska,  New  Hampshire,  New  Jersey,  Ohio  and 
Pennsylvania.  Mechem  on  Agency  Sec.  89. 


134  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  79c.    Contract  may  be  put  in  writing  after  performance. 

Despite  Civil  Code,  Sec.  1624,  a  memorandum  providing  for 
the  compensation  of  a  broker,  executed  after  the  services  had 
been  rendered,  is  enforceable  in  view  of  Sees.  1605,  1606.  Car- 
rington  v.  Smither,  147  P.  225,  26  Cal.  App.  460 ;  Miller  v.  Farr, 
98  N.  E.  805,  178  Ind.  36;  Doney  v.  Lauglilin,  94  N.  E.  1027, 
50  Ind.  App.  38 ;  Waddle  v.  Smith,  108  N.  E.  537,  58  Ind.  App. 
587. 

Sec.  79d.    Action  ex  delicto  maintainable  on  parol  contract. 

Where  an  owner  of  real  property  sued  defendant  for  fraud  in 
preventing  an  exchange  as  her  broker,  it  was  not  material 
whether  defendant's  contract  was  in  writing,  under  Burns's  Ann. 
St.  1908,  Sec.  7463.  Bragg  v.  Egan,  98  N.  E.  835,  51  Ind.  App. 
513;  Maul  v.  Cole,  144  N.  W.  247,  94  Neb.  714;  Stewart  v.  Pres- 
ton, 137  P.  993,  77  Wash.  559. 

Sec.  80.    Broker  on  procuring  customer  sending  telegram  to 
owner,  Telegraph  Company  not  agent  as  to  notice. 

The  understanding  that  a  real  estate  broker,  on  procuring 
a  purchaser  of  land,  should  wire  the  owner,  does  not  consti- 
tute the  telegraph  company  the  owner's  agent,  so  that  a  no- 
tice to  the  company  that  a  purchaser  has  been  procured  is 
not  notice  to  the  owner  until  the  telegram  is  actually  received 
by  him.  Johnson  v.  Wright,  124  Iowa,  61,  99  N.  W.  103.  See 
also  Sec.  15. 

Sec.  81.    Telegram  must  reach  owner  before  he  signs  contract 

with  another  or  it  is  too  late. 

In  an  action  for  commissions  earned  on  a  sale  of  land  it 
appeared  that  plaintiff  procured  a  purchaser  who  entered  into 
a  contract  to  buy,  plaintiff  notified  the  owner  thereof  by  tele- 
gram the  following  day,  the  owner  had  listed  his  land  with 
another  broker,  who  secured  from  a  third  person  a  written 
contract  to  buy  a  part  of  the  land.  Held,  that  unless  the 
owrer  received  the  telegram  before  signing  the  contract  of 
sale  with  the  third  person,  plaintiff  could  not  recover  com- 
missions. Johnson  Bros.  v.  Wright,  124  Iowa,  61,  99  N.  W. 
103;  Weiseh-Gerhart  R.  E.  Co.  v.  Wmnrightf  127  Mo.  App. 
514,  105  S.  TV.  1096. 


PART  II. 

OPTIONS,  SALES,  EXCHANGES, 
LEASES,  LOANS,  ETC. 

135 


CHAPTER  L 
OPTIONS. 

Sec.  82.    Exclusive  contract  to  sell  and  take  all  over  net  price, 

an  agency  and  not  an  option. 

A  contract  providing  that  C  should  have  the  exclusive  sale 
of  K's  land  for  sixty  days  at  a  sum  named,  commissions  to 
be  obtained  above  that  sum,  makes  C  the  agent  of  K,  and  does 
not  give  him  an  option  to  purchase  the  land  at  the  price  named. 
Chesum  v.  Kreigbaum,  4  Wash.  680,  30  P.  1098;  Tate  v.  Ait- 
ken,  5  Cal.  App.  505,  90  P.  836 ;  Young  v.  Ruhwedel,  119  Mo» 
App.  231,  96  S.  W.  228;  Arnold  v.  Nat.  Bk.  Waupaca,  126 
Wis.  362,  .105  N.  W.  828,  3  L.  E.  A.  (N.  S.)  580.  Compare 
Sec.  88.  See  also  Sec.  1083. 

Sec.  82a.    Construed  a  contract  of  sale  and  not  an  option. 

A  contract  executed  by  the  owner  of  land  with  one  sent  to 
him  by  a  broker,  held,  a  contract  of  sale  with,  at  most,  a  provision 
for  forfeiture,  and  not  an  option,  as  was  intimated  at  his  death, 
broker  was  entitled  to  a  commission,  the  customer  making  a  sub- 
stantial payment  down  on  the  purchase  price  at  once,  if  given 
possession,  paying  interest  on  the  full  agreed  price  from  date, 
securing  further  payments  by  chattel  mortgage  on  his  own  prop- 
erty, paying  taxes  and  insurance,  and  there  being  no  considera- 
tion for  the  alleged  option  except  the  agreed  price  of  the  land. 
Gombert  v.  Frost,  177  N.  W.  71,  —  Iowa  Sup.  — . 

Sec.  83.    Broker  employed  to  secure  an  option  entitled  to 
reasonable  compensation. 

A  broker  employed,  not  to  purchase  property  but  simply  to 
procure  an  option,  and  whose  employer  does  not  avail  himself 
of  the  services  to  make  a  purchase,  is  entitled  only  to  reasonable 
compensation,  and  not  to  the  same  compensation  to  which  he 
would  have  been  entitled  had  he  been  employed  to  purchase  the 

137 


138  AMERICAN   LAW  REAL   ESTATE  AGENCY. 

property.  Boardman  v.  Hanks,  185  Mass.  555,  70  N.  E.  1012; 
Worthington  v.  McGerry,  42  S.  988,  149  Ala.  251;  Bailey  v. 
Padgett,  70  S.  637,  195  Ala.  203;  Witt  v.  Baker,  79  S.  E.  243, 
13  Ga.  App.  396. 

Sec.  83a.    Option  contract  not  within  statute  of  frauds. 

One  negotiating  to  locate  and  obtain  an  option  for  the  pur- 
chase of  land  for  a  lumber  yard  may  recover,  though  the  contract 
is  not  in  writing,  as  is  required  by  Burns's  Ann.  Stat.  1908,  Sec. 
7463,  in  case  of  contracts  for  the  sale  of  lands  on  commission. 
Pierson  v.  Donham,  104  N.  E.  606,  55  Ind.  App.  636. 

Sec.  84.    Option,  subject  to  revocation,  makes  principal  liable 
to  broker  on  finding  a  purchaser. 

Though  the  owner  was  at  liberty  under  the  agreement  to  sell 
the  property  himself,  the  mere  fact  that  he  had  given  a  pros- 
pective purchaser  an  option  on  the  property,  subject  to  revoca- 
tion by  either  party  at  any  time,  did  not  relieve  the  principal  of 
liability  for  a  commission  if  the  broker  during  the  time  given 
him  found  a  customer  able,  ready  and  willing  to  buy  on  the 
owner's  terms.  York  v.  Nash,  42  Oregon,  321,  71  P.  59. 

Sec.  84a.    Contract  of  agency  to  sell  land  may  give  broker 
also  an  option  to  purchase. 

A  contract  creating  an  agency  to  sell  real  estate  may  also  give 
the  agent  an  option  to  purchase.  Shepard  v.  Pdbst,  135  N.  W. 
158,  149  Wis.  35. 

Sec.  85.    Broker  employed  to  effect  a  sale,  who  secures  a  mere 

option,  is  not  entitled  to  commissions. 

A  broker  employed  to  find  an  absolute  purchaser  at  a  spec- 
ified price,  on  terms  agreeable  to  the  seller,  has  not  earned 
a  commission  by  procuring  a  person  who  is  willing  to  execute 
a  contract  by  which  it  is  optional  with  him  to  make  the  pay- 
ments specified  therein,  and  on  his  failure  to  do  so  the  con- 
tract to  become  void  and  he  merely  to  forfeit  the  amount, 
if  any  paid.  Tousey  v.  Etzel,  9  Utah,  329,  34  P.  291 ;  Hilden- 


OPTIONS.  139 

brand  v.  Lillis,  10  Cal.  App.  522,  51  P.  1008;  Brown  v.  Kegan, 
32  Colo.  463,  76  P.  1056;  Fox  v.  Denargo  Ld.  Co.,  37  Colo. 
203,  86  P.  344;  Block  v.  Ryan,  4  App.  Gas.  (D.  C.)  283;  Law- 
rence v.  Rhodes,  188  111.  96,  58  N.  E.  910 ;  Aigler  v.  Carpenter 
PL  Ld.  Co.,  51  Kan.  718,  33  P.  593;  Eimberly  v.  Henderson, 
29  Md.  512;  Brown  v.  Wasner  (Wash.  Sup.  '09),  99  P.  581; 
Herman  v.  Fisher,  82  Mich.  208,  46  N.  W.  225;  Zeidler  v. 
Walker,  41  Mo.  App.  118;  Stengel  v.  Sergeant  (N.  J.  Ch.  '08), 
68  A.  1106 ;  Runyon  v.  Wilkinson,  57  N.  J.  L.  420,  31  A.  390 ; 
Ward  v.  Zborowski,  63  N.  Y.  S.  219,  31  Misc.  66;  Walsh  v. 
Gay,  63  N.  Y.  S.  543,  49  App.  Div.  50;  Bennett  v.  Egan,  23 
N.  Y.  S.  154,  3  Misc.  421 ;  Levy  v.  Kottman,  32  N.  Y.  S.  241, 
11  Misc.  372 ;  'Blakely  v.  Pursell,  90  N.  Y.  S.  337 ;  Milstein  v. 
Loring,  92  N.  Y.  S.  417,  102  A.  D.  349 ;  Hough  v.  Baldwin,  103 
N.  Y.  S.  133,  53  Misc.  284;  Brackenridge  v.  Claridge,  91  Tex. 
527,  44  S.  W.  819,  43  L.  R.  A.  593;  Runck  v.  Dimmick  (Tex. 
Civ.  App.  '08),  111  S.  W.  779 ;  Lawrence  v.  Peterson,  34  Wash. 
1,  74  P.  1011;  Dwyer  v.  Raborn,  6  Wash.  213,  33  P.  350; 
Wilson  v.  Ellis  (Tex.  Civ.  App.  '08),  106  S.  W.  1152;  Duncan  v. 
Parker,  142  P.  657,  81  Wash.  340,  L.  R.  A.  1915  A,  804;  Rehl 
v.  Fanton,  119  P.  400,  17  Cal.  App.  247;  Dreyfus  v.  Richardson, 
130  P.  161,  20  Cal.  App.  800 ;  Kinney  v.  Eckenberger,  145  P.  665, 
74  Or.  442;  Dinkelspiel  v.  Nason,  120  P.  789,  17  Cal.  App.  591; 
Ktelson  v.  Haigler,  165  P.  265,  —  Colo.  Sup.  — ;  Burton  v.  Rose, 
194  S.  W.  575,  137  Tenn.  503 ;  Dodge  v.  Lacey,  216  S.  W.  400, 
—  Tex.  Civ.  App.  — .  See  also  Sec.  90. 

Sec.  85a.  Contract  held  to  be  an  option  and  not  a  contract 
of  brokerage. 

A  contract  held  to  give  a  party  the  option  to  perform  the  con- 
tract in  person  or  to  assign  it  to  a  responsible  person,  and  not  a 
contract  of  brokerage.  Hummel  v.  City  Nat.  Bank,  143  S.  W. 
374,  146  Ky.  764. 

Sec.  85b.  Broker  to  procure  purchaser  procured  option; 
death  of  owner  before  exercise  did  not  bar  broker's  com- 
mission. 

Where  broker  employed  to  procure  a  purchaser  of  property 
procured  a  third  person  to  take  an  option  on  the  property.  The 


140  AMEBICAN  LAW  EEAL  ESTATE  AGENCY. 

death  of  the  owner  before  the  option  was  exercised  did  not  affect 
the  broker's  right  to  compensation  if  proper  steps  were  thereafter 
taken  to  exercise  the  option.  Finnerty  v.  Stratton's  Est.,  123  P. 
667,  53  Colo.  17. 

Although  a  broker  employed  to  procure  a  purchaser  would  not 
be  entitled  to  a  commission  for  merely  procuring  a  person  to 
take  an  option  to  purchase,  where  the  optionee  subsequently  ex- 
ercised the  option  the  right  to  commissions  accrued.  Id. 

Sec.  86.    Broker  entitled  to  commissions  where  customer  exer- 
cises option  by  purchasing  the  property. 

On  the  customer  exercising  his  option  by  purchasing  the 
property  the  broker's  commission  is  due.  De  Wolf  v.  Wis. 
Lake  Ice  &  Cartage  Co.  (Wis.  Sup.  '10),  124  N.  W.  297; 
Block  v.  Ryan,  4  App.  Gas.  (D.  C.)  283;  Aigler  v.  Carpenter 
PI.  Land  Co.,  51  Kan.  718,  33  P.  593;  Eimberly  v.  Henderson, 
29  Md.  512;  Walsh  v.  Gay,  63  N.  Y.  S.  543,  49  App.  Div.  50; 
Lawrence  v.  Peterson,  34  Wash.  1,  74  P.  1011;  Morson  v.  Burn- 
side,  31  Ont.  (Can.)  438;  Snead  v.  Wood,  100  S.  E.  714,  —  Ga. 
App.  — . 

Sec.  87.    Where  principal  held  only  an  option  at  time  of  sale 
does  not  defeat  broker's  right  to  commissions. 

The  fact  that  the  principal  does  not  own  the  property  which 
he  employs  the  broker  to  sell,  does  not  defeat  the  broker's  right 
to  compensation  on  procuring  a  purchaser.  Smith  v.  Schiele,  93 
Cal.  144,  28  P.  857.  Compare  Sees.  122,  154,  180.  Where,  at 
the  time  of  the  contract  of  employment,  the  principal  has  only 
an  option  on  the  land,  or  for  any  other  reason  can  not  avail 
himself  of  the  offer  procured  by  the  broker.  Monk  v.  Parker,  180 
Mass.  246,  63  K  E.  793.  See  also  Sec.  1033. 

Sec.  87a.    Broker  procuring  customer  to  exchange  who  de- 
faults his  contract  entitled  to  commission. 

A  real  estate  agent  who,  in  good  faith,  secures  for  his  customer 
an  exchange  of  lands  on  terms  embodied  in  a  written  contract, 
thereby  earns  his  commission  for  securing  such  purchaser,  al- 


OPTIONS.  141 

though  the  trade  fails  because  the  purchaser  does  not  own  all  the 
land  he  attempts  to  convey.  Triplett  ,v.  Feasel,  182  P.  551,  — 
Kan.  Sup.  — . 

Sec.  88.    Broker  who  took  an  option  not  agent  of  the  owner 
to  negotiate  a  sale. 

A  real  estate  broker  who  took  an  option  to  purchase  certain 
real  estate  at  a  stated  price  is  not  the  agent  of  the  owner  for 
negotiating  its  sale.  Southack  v.  Lane,  65  N.  Y.  S.  629,  32  Mis. 
141 ;  Hagoner  v.  Hobl,  146  P.  906,  26  Cal.  App.  298.  Compare 
Sec.  82. 

Sec.  89.    Exercise  of  option  to  purchase  revokes  contract  of 
agency  to  sell  land. 

A  contract  of  agency  for  the  sale  of  land  is  revoked  by  notice 
of  the  exercise  of  an  option  to  purchase  subsequently  given. 
Faraday  Coal  &  Coke  Co.  v.  Owens,  26  Ky.  L.  E.  243,  80  S.  W. 
1171. 

Sec.  89a.    Owner  giving  option  cannot  deprive  broker  of  right 
to  commissions  under  his  contract. 

Where  a  vendor  has  incurred  liability  to  a  real  estate  broker 
for  commissions,  he  can  not  avoid  it  by  notifying  the  broker,  on 
the  signing  of  an  option,  that  he  does  not  intend  to  pay  a  com- 
mission. Peters  v.  Riley,  81  S.  E.  530,  73  W.  Va.  785. 

Sec.  90.    Agreement  to  sell,  cash  on  delivery  of  deed,  etc.,  a 
mere  option  and  not  a  contract  of  sale. 

An  agreement  to  sell  realty  "cash  on  delivery  of  deed,  or  one- 
half  on  time  if  terms  can  be  agreed  on,"  is  a  mere  option  and 
not  a  contract  of  sale.  Wallace  v.  Figone,  107  Mo.  App.  362, 
81  S.  W.  492;  Ind  &  ArTc.  L.  &  M.  Co.  v.  Pharr,  82  Ark.  573, 
102  S.  W.  686.  See  also  Sec.  85. 

Sec.  90a.    Held  a  contract  to  sell  real  estate,  although  word 
"option"  is  used. 

A  contract  which  gives  to  a  broker  the  exclusive  right  to  pro- 
cure a  purchaser  of  real  estate  of  the  owner  for  a  specified  price, 


142  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

with  the  right  to  retain  for  his  services  any  excess  which  the 
purchaser  may  pay,  and  which  provides  that  the  "option"  shall 
run  to  a  designated  date,  and  that  the  owner  will  furnish  an 
abstract  of  title  and  warranty  deed  to  the  broker  or  to  any  one 
designated  by  him,  is  an  agreement  to  pay  a  commission  for 
selling  land,  the  word  "option"  relating  to  the  exclusive  right 
to  sell  within  the  limited  time.  Brittson  v.  Smith,  130  N.  W. 
599,  105  Mich.  222. 

Sec.  91.    A  sale  of  land  by  the  owner,  subject  to  option,  does 

not  constitute  a  breach  of  contract. 

If  during  the  continuance  of  the  option  given  to  a  real 
estate  broker,  the  owner  bargains  the  property  to  a  third 
party  contingent  on  the  failure  of  the  option  holder  to  com- 
ply with  the  terms  of  the  option,  does  not  alone  constitute  a 
breach  of  the  option  by  the  owner.  Smith  v.  Lawrence,  98 
Me.  92,  56  A.  455. 

Sec.  92.  Where  broker  sent  owner  the  form  of  an  option, 
which  he  executed,  on  sale  broker  not  entitled  to  com- 
mission. 

Where  a  broker  sent  the  owner  of  real  estate  a  form  of  a 
purchase  option,  which  the  owner  executed  and  a  sale  took 
place  under  the  option,  the  broker  was  not  entitled  to  recover 
commissions  from  the  owner,  as  the  transaction  did  not  amount 
to  an  employment.  Davenport  v.  Corbett,  98  N.  Y.  S.  403, 
112  App.  Div.  382.  See  also  Sec.  104. 

Sec.  93.  Broker  to  procure  a  lessee  not  entitled  to  commis- 
sions for  an  option. 

A  paper  signed  by  a  principal  and  a  proposed  tenant  stip- 
ulated, "We  agree  to  execute  a  lease  of  certain  premises  to 
such  tenant"  from  October  or  November,  1906,  for  seven 
years,  at  a  rental  of  $18,000  per  year,  the  lease  as  to  condi- 
tions to  be  an  exact  copy  of  the  lease  we  now  hold  on  the 
above  premises  "(by  the  conditions  it  means  taxes,  insurance, 
if  in  lease)"  the  running  expense,  etc.,  included;  it  is  under- 
stood that  at  signing  of  lease  six  months'  rent  in  advance  is 


OPTIONS.  143 

to  be  paid  "by  the  tenant,"  this  to  draw  six  per  cent,  yearly 
in  advance,  principals  to  secure  the  proposed  tenant  for  above 
amount  by  assignment  of  lease  of  the  premises  now  existing, 
provided  this  can  be  done,  or  other  security,  lease  to  be  exe- 
cuted on  or  before  October  10,  1902.  Held,  that  the  instru- 
ment was  a  mere  option,  in  no  way  obligating  the  proposed 
tenant,  and  the  procuring  of  his  signature  thereto  was  not  a 
compliance  on  the  broker's  part  with  a  contract  between  the 
broker  and  his  principal  whereby  the  broker  was  to  become 
entitled  to  a  certain  commission  for  procuring  a  tenant  as 
such  lessee  of  the  premises  in  question,  in  which  the  principal 
had  a  leasehold  interest.  Benedict  v.  Pincus,  95  N.  Y.  S. 
1042,  109  App.  Div.  20;  Laws  &  Bradford  v.  Schmidt,  80 
Ohio  St.  108,  88  N.  E.  319. 

Sec.  94.    On  concluding  an  option  for  whole  tract,  owner  jus- 
tified in  refusing  offer  for  part. 

Where  plaintiff,  pursuant  to  her  employment  to  sell  certain 
land  for  defendant,  produced  a  purchaser  who  was  willing  to 
take  an  option  on  the  land,  defendants  were  justified  in  re- 
fusing to  consider  the  proposition  of  another  customer  for  a 
portion  of  the  land  furnished  by  plaintiff  until  the  negotia- 
tions pending  with  the  first  customer  were  terminated.  Fox 
v.  Denargo  Land  Co.,  37  Colo.  203,  86  P.  344. 

Sec.  95.    Parties  taking  options  at  liberty  to  withdraw  before 

contract,  and  no  commissions  are  earned. 
Where  the  owner  of  certain  land  was  willing  to  give  a  pur- 
chaser procured  by  plaintiff  the  privilege  of  buying,  and  the 
purchaser  was  willing  to  take  an  option,  it  would  be  presumed 
that  the  parties  were  negotiating  for  a  written  agreement; 
hence,  neither  party  was  at  liberty  to  withdraw  any  propo- 
sition made  during  the  negotiations  and  to  repudiate  any  oral 
agreement  before  the  execution  of  the  written  contract,  with- 
out the  owner  being  liable  to  the  broker  furnishing  such  pur- 
chaser for  commissions  in  case  of  the  failure  of  the  parties  to 
agree.  Fox  v.  Denargo  Land  Co.,  37  Colo.  203,  86  P.  344; 
Smith  v.  Merrill,  134  Wis.  227,  114  N.  W.  508;  Mercer  v. 


144  AMERICAN   LAW  EEAL  ESTATE  AGENCY. 

Planters'  Rice  Mill  Co.,  81  S.  E.  492,  16  Ga.  App.  38.     See  also 
Meeting  of  Minds,  Sec.  33. 

Sec.  96.    When  option  was  exercised  broker  was  entitled  to 
commissions,  although  paid  for  reselling  lease. 

Plaintiff  engaged  by  defendant  to  sell  found  no  customer, 
but  found  a  person  who  would  take  a  lease  with  an  option  to 
purchase,  and  defendant  agreed  to  this,  and  paid  plaintiff  a 
commission  on  the  lease,  and  agreed  to  pay  a  commission  on 
a  sale,  if  the  option  was  exercised.  Held,  that  plaintiff  was 
not  deprived  of  his  right  to  commissions  from  defendant  for 
the  sale  on  the  option  being  exercised,  because  after  the  exe- 
cntion  of  the  lease  and  option  he  found  a  purchaser  for  the 
lease  and  received  a  commission  from  his  principal.  Davis 
v.  Weber,  92  N.  Y.  S.  823,  46  Misc.  590. 

Sec.  97.    Contract  of  exchange  contingent  on  encroachments 

not  defeating  was  a  mere  option. 

In  an  action  by  a  real  estate  broker  for  commissions  for 
effecting  an  exchange  of  defendant's  property,  evidence  that 
,at  or  about  the  time  of  the  signing  of  the  contract  of  exchange, 
which  stipulated  that  if  the  other  party  thereto  rejected  de- 
fendant's title,  on  the  ground  of  bay-window  or  stoop-ledge 
encroachments,  his  deposit  should  be  returned  in  full  of  all 
claims,  plaintiff  signed  a  writing  wherein  he  agreed  to  wait 
for  his  commissions  until  after  the  title  closed,  was  evidence 
tending  to  show  that  plaintiff,  as  well  as  defendant,  regarded 
the  contract  of  exchange  as  a  mere  option,  and  not  an  abso- 
lute, enforceable  contract  of  exchange.  Hough  v.  Baldwin,  99 
N.  Y.  S.  545,  50  Misc.  546.  See  Sec.  95. 

Sec.  98.    Go-agent  not  bound  by  an  option  neither  given  nor 

ratified  by  himself. 

A  co-agent  under  a  power  to  sell  is  not  bound  by  an  un- 
authorized option  not  given  or  ratified  by  himself,  and,  if  he 
purchase  the  land  for  himself,  can  not  be  held  as  a  trustee 
for  the  claimant  under  the  option.  Tibbs  v.  Zirkle,  55  W. 
Va.  49,  46  S.  E.  701,  104  Am.  St.  R.  977. 


OPTIONS.  145 

Sec.  99.    Option  and  title  bond  taken  by  agent  to  insure  sale, 
do  not  affect  relationship  of  agency. 

Real  estate  agents  who  take  from  the  owner  of  lands  listed 
with  them  for  sale,  an  option  and  title  bond  to  make  certain 
that,  if  a  sale  is  effected,  it  will  be  carried  out  without 
obstruction,  are  still  agents,  so  that  the  principal  is  liable  for 
their  fraud.  Alger  v.  Anderson,  78  Fed.  729.  See  also  Sees.  313. 
314,  315,  316. 

Sec.  100.    Option  at  best  price  obtainable  means  satisfactory 
to  purchaser. 

A  contract  of  employment  to  obtain  options  on  property 
stated  that  the  options  should  be  at  a  price  at  which  the  party 
for  whom  they  were  purchased  "may  buy."  Held,  that  the 
intent  of  the  parties  was  that  the  option  obtained  should  be 
at  a  price  which  was  satisfactory  to  the  purchasers,  and  if 
shown  to  be  so,  the  conditions  of  the  contract  were  fully  com- 
plied with.  Worthington  v.  McGarry,  149  Ala.  251,  42  S.  988. 

Sec.  101.    Option  unexercised,   subsequent  sale  to  party  by 

administrator,  broker  not  entitled  to  commissions. 
A  broker  who  finds  a  person  who  takes  an  option  on  the 
purchase  of  certain  mining  property,  which  is  not  carried  out, 
can  not,  where  the  owner  dies  before  the  option  expires,  re- 
cover his  agreed  commissions  from  the  administrator,  where 
the  latter,  after  the  expiration  of  the  option,  sells  the  prop- 
erty to  the  same  person  at  the  same  price,  even  though  the 
negotiations  conducted  by  the  broker  prior  to  the  owner's 
death  may  have  contributed  to  the  accomplishment  of  the  sale. 
Crowe  v.  Trickey,  204  U.  S.  228,  affirming  Trickey  v.  Crowe 
(Ari.  Sup.),  71  P.  965;  Crowe  v.  Harmon,  204  U.  S.  241,  af- 
firming Harmon  v.  Crowe  (Ari.  Sup.),  71  P.  1125.  See  also 
Sec.  199. 

Sec.  102.    Broker  to  secure  two  options,  principal  tells  him 

not  to  act  as  to  one,  breach  of  contract. 
Where  a  party  under  a  contract  is  to  secure  for  a  second 
party  options  on  certain  properties,  and  the  second  party  di- 


146  AMERICAN   LAW.  REAL   ESTATE   AGENCY. 

rects  him  not  to  proceed  in  reference  to  securing  an  option 
on  one  of  the  properties,  this  is  a  breach  of  the  contract  for 
which  the  second  party  is  liable  in  damages.  Worthington  v. 
McGarry,  149  Ala.  251,  42  So.  988. 

Sec.  103.    Broker  not  entitled  to  compensation  for  securing 

part  of  options. 

Plaintiff  and  defendant  entered  into  a  contract  whereby  de- 
fendant agreed  to  pay  plaintiff  a  certain  sum  if  the  plaintiff 
should  secure  certain  options  on  ore  land  and  on  a  majority 
of  the  stock  of  a  corporation;  plaintiff  secured  the  options 
except  as  to  the  stock  of  the  corporation.  Held,  that  plaintiff 
is  not  entitled  to  compensation  under  the  contract  for  secur- 
ing the  ore  option,  by  alleging  and  proving  that  he  was  pre- 
Tented  by  defendant  from  endeavoring  to  obtain  the  other.  Id. 

Sec.  104.    Broker  obtaining  price  from  owner,  amounts  only 
to  a  naked,  verbal  option. 

Where  a  broker  asks  and  obtains  from  the  owner  the  price  at 
which  he  would  sell  real  property,  without  anything  being  said 
as  to  the  broker's  employment  or  compensation,  and  it  does  not 
appear  that  the  owner  knew,  or  had  reasonable  grounds  to  be- 
lieve, that  the  broker  expected  to  be  paid,  no  contract  of  employ- 
ment, express  or  implied,  can  be  inferred,  but  at  best  only  a 
naked,  verbal  option.  Clammer  v.  Eddy,  41  Colo.  235,  92  P.  722 ; 
Ewing  v.  Bond,  215  S.  W.  934,  —  Ky.  Ct.  App.  — .  See  also 
Sec.  92. 

Sec.  104a.    Holder  of  option  not  necessarily  the  agent  to  sell 
the  property. 

A  holder  of  an  option  contract  on  land  is  not  necessarily  the 
agent  of  the  owner  so  as  to  render  the  owner  liable  for  misrep- 
resentation by  him  inducing  a  sale  to  a  third  person,  and  it  is 
immaterial  that  the  option  contract  may  be  assigned  in  case  the 
holder  sells  the  property.  Shepard  v.  Pabst,  135  N.  W.  158,  149 
Wis.  35. 


OPTIONS.  147 

Sec.  105.    Option  given  and  extended,  broker  held  as  acting 

in  the  character  of  a  purchaser. 

In  an  action  by  a  broker  for  commissions  in  procuring  a 
purchaser  of  timber  lands,  it  appeared  that  the  broker,  on 
learning  that  the  property  was  for  sale,  looked  it  over  at  dif- 
ferent times,  and  had  an  interview  with  the  owner  as  to  the 
price;  that  thereafter,  he  wrote  a  letter  to  the  owner  request- 
ing him  not  to  let  any  outsider  know  about  the  price  for  a 
time;  that  the  owner  replied  that  he  would  give  the  broker 
an  option  on  the  price  and  conditions  named  until  a  specified 
time;  this  option  was  extended.  Held,  not  to  show  that  the 
broker  was  acting  in  the  sale  as  a  broker  of  the  owner,  but  in 
the  character  of  a  purchaser.  Wood  v.  Palmer,  151  Mich.  30, 
115  N.  W.  242,  14  Det.  L.  N.  963 ;  Harten  v.  Loeffler,  31  App. 
D.  C.  362. 

Sec.  105a,    Broker  given  option  may  sell  at  an  advance  with- 
out accounting  to  owner  therefor. 

A  broker  employed  to  procure  a  purchaser  and  given  an  op- 
tion to  purchase;  held,  entitled  to  exercise  the  option  and  convey 
the  property  to  another  at  an  advance,  without  being  required  to 
account  to  the  owner  therefor.  But  he  is  required  to  account  to 
the  owner  for  profits  realized  on  a  resale  after  exercise  of  option. 
Neighbor  v.  Pacific  Realty  Society,  124  P.  520,  40  Utah,  610, 
Ann.  Cas.  1914  D,  1200. 

Sec.  106.    Error  to  prevent  defendant  showing  how  option 

was  finally  made  to  purchaser. 

Where,  in  an  action  by  a  real  estate  broker  to  recover  com- 
missions for  finding  a  purchaser,  defendant  claimed  that  the 
sale  was  made  through  the  efforts  of  another,  it  was  error  to 
sustain  an  objection  to  a  question  to  defendant  by  his  coun- 
sel, as  to  the  circumstances  under  which  the  option  was  finally 
made  to  the  purchaser.  Grieb  v.  Koeffler,  127  Wis.  314,  106 
N.  W.  113. 

Sec.  107.    Defendants  giving  broker  option,  estopped  to  say 

they  procured  his  customer  to  buy. 

Where  defendants  gave  plaintiff  an  option  to  effect  a  sale 
of  coal  property,  if  sold  within  a  certain  time,  on  a  stipulated 


148  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

commission,  and  agreed  to  assist  plaintiff  in  the  sale  thereof, 
defendants  will  not  be  heard  to  say  that  a  sale  to  one  with 
whom  plaintiff  was  negotiating,  made  during  the  continuance 
of  the  option,  was  the  result  of  their  independent  efforts. 
Wells  v.  Hocking  Valley  Coal  Co.,  137  Iowa,  526,  114  N.  W. 
1076. 

Sec.  108.    Defendant  may  show  purchaser  took  an  option,  and 

did  not  intend  to  buy  unless  he  secured  adjoining  lot. 
In  an  action  by  a  broker  to  recover  commissions  for  mak- 
ing a  sale  of  realty  defendant  may  show  that  plaintiff  knew 
that  the  purchaser  presented  by  him  simply  obtained  an  op- 
tion, and  did  not  intend  to  buy  unless  he  purchased  some  ad- 
joining lots.  Walsh  v.  Gay,  63  N.  Y.  S.  543,  49  App.  Div.  50. 

See  also  Sees.  45,  65,  182. 

Sec.  108a.     Broker  to  sell  land  not  entitled  to  commission 
after  principal  gives  option  to  purchase. 

Broker  not  entitled  to  a  commission  where  employed  to  sell 
land,  where  his  principal  gives  an  option  to  purchase.  Martin  v. 
Wilson,  134  P.  532,  24  Idaho,  353. 

Sec.  109.    Option  as  only  agreement,  what  owner  may  show 
to  corroborate  that  claim. 

Where,  in  a  suit  for  a  commission  for  finding  a  purchaser 
for  land,  plaintiff  alleged  that  the  owner  listed  it  with  brokers, 
who  listed  it  with  plaintiff's  firm,  with  the  owner's  consent, 
the  owner  could  show  that  shortly  before  the  alleged  listing 
with  such  broker,  he  gave  them  an  option  to  purchase  a  tract, 
including  the  land  on  account  of  which  the  commission  was 
claimed,  as  tending  to  corroborate  the  owner's  claim  that  the 
option  contract  was  the  only  agreement  between  him  and  the 
broker.  Sterling  v.  De  Laune  (Tex.  Civ.  App.  '07),  105  S. 
W.  1169. 

Sec.  110.    Option  held  not  expired  when  sale  was  made  by 

owner. 

In  an  action  by  a  broker  to  recover  commissions  on  a  sale 
of  land,  evidence  held  to  support  a  finding  that  an  option  au- 


OPTIONS.  149 

thorizing  plaintiff  to  sell  the  land,  had  not  expired  before  the 
sale.  Holbroolc-Blackwelder  R.  E.  &  T.  Co.  v.  Hartman,  128 
Mo.  App.  228,  106  S.  W.  1115. 

Sec.  HOa.    Contract  held  an  option  and  a  brokerage. 

Agreement  giving  broker  an  option  to  purchase  land  at  a  speci- 
fied price,  and  providing  that  a  commission  of  5%  would  be  paid; 
held,  to  give  broker  not  only  an  option  to  purchase,  but  a  right 
to  sell  to  others  at  the  price  specified.  Burt  v.  Stringfellow,  143 
P.  234:,  45  Utah,  207. 

Sec.  llOb.    Option  to  sell  realty  defined. 

Option  to  sell  realty  given  brokers  provided  it  should  remain 
in  force  for  90  days,  and  that  if  the  owner  sold  within  90  days 
after  expiration  to  one  to  whom  the  land  was  recommended  by 
the  brokers,  the  owners  would  pay  a  commission,  was  an  agree- 
ment to  pay  the  brokers  a  commission  if  the  land  was  sold  within 
90  days  after  the  expiration  of  the  option  to  one  to  whom  it  was 
recommended  by  the  brokers  during  the  90  days  of  the  option's 
life.  Elsea  v.  Fassler,  154  P.  1067,  29  Cal.  App.  187. 

Sec.  111.    Error  to  grant  new  trial  to  permit  setting  up  the 
exercise  of  an  option. 

Where,  in  an  action  for  a  broker's  services  in  the  sale  of 
a  mine,  a  non-suit  was  granted,  by  reason  of  the  fact  that  an 
option  to  purchase  negotiated  by  the  broker  had  not  matured 
when  suit  was  brought,  and  pending  a  motion  for  a  new  trial 
for  alleged  errors  of  law  occurring  at  the  trial,  the  purchaser 
complied  with  the  option  and  completed  the  sale,  it  was  error 
to  grant  a  subsequent  application  for  a  new  trial  in  order  to 
permit  the  broker  to  allege  by  amendment  the  completion  of 
the  sale  and  recover  for  his  services.  Lawrence  v.  Peterson, 
34  Wash.  1,  74  P.  1011. 


CHAPTER  II. 
SALES  OF  REAL  ESTATE. 

Sec.  112.    If  employment  does  not  state  terms  of  sale  satis- 

factory  to  principal  implied. 

A  real  estate  broker  is  not  entitled  to  commissions  for  the 
sale  of  land  unless  he  procures  a  purchaser  who  is  able,  ready 
and  willing  to  complete  a  purchase  on  terms  named,  or  which 
are,  in  the  absence  of  an  express  agreement  as  to  terms,  sat- 
isfactory and  agreeable  to  the  owner.  Fairchild  v.  Cunning- 
ham, 84  Minn.  521,  88  N.  W.  15;  Montgomery  v.  Knicker- 
bocker, 50  1ST.  Y.  S.  128,  27  K  Y.  App.  D.  117;  Handley  v.  Shaf- 
fer, 59  S.  286,  177  Ala.  636;  Alexander  v.  Smith,  61  S.  68,  180 
Ala.  541. 

Sec.  112a.    Broker  to  "sell"  property  does  not  mean  to  con- 
vey it,  or  guarantee,  or  collect  deferred  payments. 

Employment  of  a  real  estate  broker  "to  sell"  property  on  com- 
mission does  not  mean  that  he  is  required  to  convey  it,  or  guar- 
antee, or  collect  deferred  payments.  Payne  v.  Ponder,  77  S.  E. 
32,  139  On.  283. 

Sec.  113.    A  broker  who  effects  a  sale  according  to  the  terms 
of  the  employment  is  entitled  to  compensation. 

Where  property  is  placed  with  a  broker  for  sale,  he  is  not 
bound  to  consummate  a  sale  or  procure  a  purchaser  upon  the 
agreed  terms,  but  when  he  does  either  his  commission  is  earned. 
Walsh  v.  Hastings,  20  Colo.  243,  38  P.  324;  Gilmore  v.  Bailey, 
103  111.  App.  245;  Stephens  v.  Scott,  43  Kan.  285,  23  P.  555; 
Dreisbach  v.  Rollins,  39  Kan.  268,  18  P.  187;  Locke  v.  Gris- 
wold,  96  Mo.  App.  527,  70  S.  W.  400 ;  Pollard  v.  Banks,  67  Mo. 
App.  187;  Crowley  Co.  v.  Myers,  69  N.  J.  L.  245;  55  A.  305; 

150 


SALES  OF  REAL  ESTATE.  151 

Brundage  v.  McCormick,  23  1ST.  Y.  S.  262,  69  Hun,  65;  McCaff- 
rey v.  Page,  20  Pa.  Super.  Ct.  400;  Jordan  v.  Snyhenry, 
(Iowa  Sup.  '09),  123  N".  W.  956;  Lincoln  Realty  Co.  v.  Garden 
City  Land  &  Emi.  Co.,  143  N.  W.  230,  94  Neb.  340,  Ann.  Gas. 
1914  D,  377;  Youngman  v.  North  Electric  Co.,  146  N.  Y.  Sup. 
69,  160  App.  Div.  758,  judg.  rev.  112  N.  E.  1080,  218  N.  Y. 
645;  Ketcham  v.  Axelson,  142  N.  W.  62,  160  Iowa,  456;  Johnson 
v.  Holland,  97  N.  E.  755,  211  Mass.  363;  Schlegel  v.  Fuller,  149 
[P.  1118,  —  Okl.  Sup.  — ;  Yarborough  v.  Richardson,  131  P. 
680,  38  Okl.  11;  Witt  v.  Byrum,  135  S.  W.  687,  —  Tex.  Civ. 
App.  — ;  Cone  v.  Keil,  124  P.  548,  18  Cal.  App.  675;  Douglas  v. 
Spangenberg,  137  P.  1103,  23  Cal.  App.  294;  Pomarici  v.  Rosen- 
Hum,  120  N.  Y.  Sup.  756;  Jauman  v.  McCusicTc,  137  P.  254, 
166  Cal.  517;  McRae  v.  Ross,  148  P.  215,  170  Cal.  74;  W.  T. 
Craft  Realty  Co.  v.  Livernash,  146  P.  121,  27  Colo.  App.  1; 
Tebo  v.  Weld,  92  A.  876,  5  Boyce  (Del.  Super.)  255;  Crawford  v. 
Cicotte,  152  N.  W.  1065,  186  Mich.  269;  Cross  v.  Day,  139  K 
W.  272,  173  Mich.  553;  Williams  v.  Phelps,  171  S.  W.  1100,  — 
Tex.  Civ.  App.  — ;  Keinath,  Schuster  &  Hudson  v.  Reed,  137  P. 
841,  18  K  M.  358;  Payne  v.  Ponder,  77  S.  E.  32,  139  Ga.  283; 
Nayl  v.  Small,  138  N.  W.  849,  159  Iowa,  387 ;  Button  v.  Stewart, 
135  P.  681,  90  Kan.  602 ;  Ingalls  v.  Smith,  145  P.  846,  93  Kan. 
814;  Van  VaricJc  v.  Suburban  Inv.  Co.,  135  N.  Y.  Sup.  299,  76 
Misc.  Rep.  593;  Waddle  v.  Smith,  108  N.  E.  537,  58  Ind.  App. 
587;  Nagle  v.  Smith,  138  N.  W.  849,  159  Iowa,  387;  McCormick 
v.  Obanion,  153  S.  W.  267,  168  Mo.  App.  606;  Fox  v.  Ryan,  88 
N.  E.  974,  240  111.  391;  Easter  v.  Newberry,  170  111.  App.  494; 
Fargeon  v.  Znd.  Ter.  ZH«.  0tZ.  Co.,  120  N.  Y.  Sup.  298,  rev.  130 
N.  Y.  Sup.  532,  146  App.  Div.  23.  See  Unilateral  Contracts, 
Sec.  20.  See  also  Sec.  136. 

Sec.  113a.    Broker  entitled  to  commission  for  aiding  in  the 
making  of  a  sale. 

Where  defendant  agreed  to  pay  plaintiff  a  stipulated  commis- 
sion for  his  aid  in  selling  land,  and  plaintiff,  at  defendant's  di- 
rection, assisted  in  making  a  sale,  he  is  entitled  to  his  commis- 
sion regardless  of  the  value  of  his  services.  Godfrey  v.  Wisener, 
147  P.  952,  169  Cal.  667. 


152  AMERICAN   LAW  REAL  ESTATE  AGENCY. 

Sec.  113b.    Broker  entitled  to  commission  for  procuring  buyer 
who  paid  more  cash  than  required. 

The  procuring  of  a  purchaser  who  agreed  to  pay  a  greater  pro- 
portion of  the  price  in  cash  than  required  by  the  brokerage  con- 
tract; held,  sufficient  to  entitle  the  broker  to  his  commission. 
Paulsen  v.  Rourke,  145  P.  711,  26  Colo.  App.  500. 

Sec.  113c.    Sale  according  to  terms  but  to  different  person  en- 
titled broker  to  commission. 

Where  a  broker  notified  the  owner  that  he  thought  that  a  third 
person  would  purchase  the  property,  and  the  owner  authorized  a 
sale  at  a  specified  price  for  a  specified  commission,  the  broker's 
authority  was  not  limited  to  the  making  of  a  sale  to  the  third 
person,  but  he  could  make  a  sale  to  another  on  the  specified 
terms  and  recover  his  commission.  Harger  v.  Watson,  142  N.  W. 
352,  176  Mich.  192. 

Sec.  113d.    Broker  to  sell  must  effect  sale  or  secure  binding 
contract  to  earn  commission. 

A  broker  employed  to  sell,  as  distinguished  from  a  broker  em- 
ployed to  find  a  purchaser,  is  not  entitled  to  compensation  until 
he  effects  a  sale  or  procures  from  his  customer  a  binding  contract 
of  purchase  within  the  terms  of  his  authority.  Elliott  v.  Gamble, 
82  S.  253,  —  Fla.  Sup.  — . 

Sec.  114.    A  contract  of  sale  may  be  established  by  circum- 
stantial evidence. 

Circumstantial  evidence  may  be  sufficient  to  establish  a  con- 
tract of  sale  when  no  objection  is  made  to  the  competency  of 
any  portion  of  it.  Chapin  v.  Bridges,  116  Mass.  105. 

Sec.  115.    A  judicial  sale  producing  increased  price  entitled 
broker  to  more  commissions. 

Where  land  is  bought  at  a  judicial  sale  for  a  nominal  sum  by 
a  third  person  who,  pursuant  to  a  guaranty  made  to  the  receiver 
pays  a  much  larger  sum  for  the  property,  the  broker  is  en- 


SALES  OP  EEAL  ESTATE.  153 

titled  to  commissions  on  said  larger  sum.    Peters  v.  Anderson, 
23  S.  B.  754,  88  Va.  1051.    Compare  Sec.  859. 

Sec.  116.    Broker  not  entitled  to  commissions  for  making  a 

nominal  sale. 

A  broker  employed  to  sell  property  is  not  entitled  to  a  com- 
mission where  the  transaction  so  far  as  it  was  effected  by  him 
did  not  amount  to  a  sale.  Viaux  v.  Old  South  Soc.,  133  Mass. 
1,  10 ;  Cosgrove  v.  Leonard  Mer.,  etc.,  Co.,  175  Mo.  100,  74  S.  W. 
986;  Johnson  v.  Sirret,  153  N.  Y.  51,  46  N.  E.  1035;  Terry  v. 
Wilson,  50  Minn.  570,  52  N.  W.  973. 

Sec.  117.    Contract  of  sale  signed  by  purchaser  prima  facie 
evidence  of  readiness  to  buy. 

A  contract  of  sale  signed  by  a  purchaser,  unilateral  when 
tendered  to  the  vendor,  is  prima  facie  evidence  of  the  pur- 
chaser's readiness  and  willingness  to  buy.  Flynn  v.  Jordal,  124 
Iowa,  457,  100  N.  W.  326. 

Sec.  118.    An  enjoined  sale  does  not  deprive  the  broker  of 

commissions  earned. 

A  broker  employed  to  sell  real  estate  has  discharged  his 
duty  when  he  produces  a  purchaser  able  and  willing  to  buy 
upon  the  terms  and  at  the  price  fixed  by  the  seller,  regardless 
of  whether  the  sale  is  ever  actually  consummated  or  not,  pro- 
vided the  failure  is  not  due  to  some  fault  of  the  broker,  and 
even  although  the  sale  is  afterwards  enjoined.  Gibson  v.  Gray, 
17  Tex.  C.  Ap.  646,  43  S.  W.  922. 

Sec.  119.    Broker  employed  to  effect  a  sale  not  entitled  to 

compensation  until  consummated. 

In  an  action  to  recover  the  agreed  compensation  to  be  paid 
on  the  making  of  a  sale  or  disposition  of  the  property,  a  broker 
is  not  entitled  to  recover  for  merely  finding  a  purchaser,  when 
he  failed  to  consummate  a  sale.  Dorrington  v.  Powell,  52  Neb. 
440,  72  N.  W.  587;  Lyle  v.  Uni.  Land  &  Inv.  Co.  (Tex.  Civ. 
App.  95),  30  S.  W.  726;  see  also  Sees.  193,  224,  272,  449;  Pfanz 
v.  Humburg,  820  St.  1. 


154  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

Sec.  120.    The  withdrawal  of  land  from  sale  entitled  broker, 
under  the  contract,  to  commissions. 

By  the  terms  of  the  contract  of  employment  between  the 
owner  of  land  and  a  broker  commissions  became  due  upon 
withdrawal  of  the  property  from  sale  within  a  certain  time. 
Held,  that  the  notice  recited  that  it  was  given  under  a  con- 
tract by  the  owner  to  the  broker  not  to  sell  said  land,  that  it 
had  been  withdrawn  from  the  market,  written  within  that  time, 
while  the  owner  was  repudiating  a  sale  by  the  broker,  was  a 
withdrawal  of  the  premises  from  sale  entitling  the  broker  to 
his  commissions,  not  as  damages  for  breach  of  contract,  but  as  a 
debt.  Maze  v.  Gordon,  96  Cal.  61,  30  P.  962 ;  compare  Sec.  585. 

Assent  by  a  broker,  employed  to  procure  a  purchaser,  to  a 
withdrawal  of  the  property  from  sale,  held,  not  to  affect  his  right 
to  a  commission  on  the  owner  subsequently  selling  the  property 
to  a  customer  of  the  broker.  Howard  v.  Street,  93  A.  923,  125 
Md.  289. 

Sec.  121.    Transaction  whereby  properties  are  given  far  others 
and  cash  difference  is  a  sale. 

A  transaction  by  which  certain  pieces  of  property  are  given 
for  others,  a  definite  price  being  put  on  each  and  the  difference 
paid  in  cash,  is  a  sale  and  not  an  exchange.  Thornton  v.  Moody, 
(Tex.  Civ.  App.  93),  24  S.  W.  331;  Ullman  v.  Land,  37  Tex  Civ. 
App.  422 ;  84  S.  W.  294.  See  Sec.  164. 

Sec.  122.    Sale  miscarrying  through  no  fault  of  principal, 

broker  not  entitled  to  commissions. 

Where  the  owner  of  land  authorized  real  estate  agents  to 
sell  land  purchased  by  him,  and  informed  them  that  he  had 
no  deed  for  the  same,  but  held  it  under  a  contract,  and  the 
agents  made  a  contract  for  the  sale  of  the  land,  but  the  pur- 
chaser refused  to  complete,  because  the  vendor  had  only  a  con- 
tract of  purchase,  there  being  no  other  defect  in  the  title,  it 
was  held  that  the  agents  were  not  entitled  to  recover  the  agreed 
commissions  on  the  sale,  as  it  proved  abortive  without  any 
fault  on  the  part  of  their  principal.  Hoyt  v.  Shipherd,  70  111. 
309;  compare  Sec.  87. 


SALES  OF  REAL  ESTATE.  155 

Sec.  123.    Sale  by  wrong  description  bars  broker's  right  to 

commissions. 

A  real  estate  broker  authorized  to  sell  a  tract  of  land  spoksn 
of  by  the  owner  as  being  his  land  on  a  certain  canal,  has  no 
authority  to  sell  it  by  any  other  description  than  that  by 
•which  it  was  purchased  by  the  owner,  and  the  broker's  com- 
missions are  not  earned  where  the  trade  falls  through  because 
the  contract  made  by  the  broker  with  the  intending  purchaser 
described  the  tract  as  containing  a  stated  number  of  acres  south 
of  the  canal,  whereas  it  was  described  in  the  conveyance  to  the 
owner  as  being  that  number  of  acres  south  of  the  center  of  the 
canal.  Ward  v.  Lawrence,  70  111.  295. 

Sec.  124.    A  single  sale  of  real  estate  not  doing  business  to 

require  a  license. 

One  who,  while  engaged  in  other  business,  sells  land  for 
another,  may  recover  his  commissions,  though  he  had  not  taken 
out  a  license  as  required  of  real  estate  agents,  since  a  single 
sale  does  not  constitute  the  exercise  of  the  business  of  real 
estate  brokerage.  O'Neill  v.  Sinclair,  153  111.  525,  39  N.  E.  124; 
}Black  v.  Snook,  204  Pa.  St.  119,  53  A.  648 ;  Tedinsky  v.  Strouse, 
6  Pa.  Super.  Ct.  587,  42  W.  N.  C.  12;  Jones  v.  Mo.  Lumber  & 
Mining  Co.,  166  111.  App.  266;  Glicken  v.  Shaller,  185  111.  App. 
115;  Greeriburg  v.  Nyberg  Au.  Wks.,  162  111.  App.  504;  Lake  v. 
Kontsojiania,  174  111.  App.  252 ;  Woods  v.  Heron,  78  A.  1128,  229 
Pa.  625. 

Sec.  125.     Owner  forced  to  sell  with  joint  owner  deprives 
broker  of  commissions. 

Where  a  landowner,  who  has  engaged  a  real  estate  agent  to 
sell  land  at  a  certain  price,  is  forced  to  join  with  a  joint  owner 
to  effect  a  sale  and  sell  at  a  reduced  price,  the  agent  is  not  en- 
titled to  commissions.  Buhl  v.  Noe,  51  111.  App.  622.  See  also 
Sees.  1023,  1036. 

Sec.  125a.    Transfer  by  joint  owner  of  undivided  half  interest 
a  sale  entitling  broker  to  commission. 

The  transfer  of  an  undivided  one-half  interest  in  a  farm  by 
one  joint  owner  to  the  other  is  not  a  sale  of  the  farm  contemplated 


156  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

in  the  reservation  in  the  contract  by  the  joint  owners  with  a 
broker  for  sale  on  commission,  by  which  the  owners  reserved  the 
right  to  sell  the  farm  themselves  without  liability  for  commis- 
sions. Farrell  v.  Almgren,  211  111.  App.  654. 

Sec.  126.    Sale  by  broker,  who  agrees  afterward  to  resell,  not 
a  fraud  on  seller. 

A  broker  negotiated  a  sale  of  plaintiff's  land  to  defendant, 
who  had  his  deed  made  out  to  a  third  person,  who  afterwards 
conveyed  to  defendant;  a  few  weeks  after  the  sale  defendant 
agreed  to  let  the  broker  sell  the  land  for  him  at  an  advance, 
the  profits  to  be  equally  divided  between  them;  plaintiff  did 
not  know  at  the  time  of  the  sale  that  defendant  was  the  pur- 
chaser, and  there  was  then  no  arrangement  or  understanding 
between  defendant  and  the  broker  as  to  any  resale  of  the 
property  or  division  of  the  profits.  Held,  that  there  was  nothing 
in  the  transaction  in  fraud  of  plaintiff.  Glover  v.  Layton,  145 
111.  92,  34  N.  E.  53. 

Sec.  127.    Sale  ineffectual  where  broker  had  no  authority  to 

make  it. 

In  a  suit  for  specific  performance  of  a  contract  by  C.  as  agent 
of  defendant  to  convey  certain  lots,  it  appeared  that  the  lots 
were  situate  in  D.,  where  such  agent  resided;  that  on  March 
30,  1889,  defendant  wrote  the  agent:  "I  will  be  in  D.  last  of 
April  or  first  of  May,  wish  you  would  have  a  purchaser;  think 
I  ought  to  get  $17,000,  as  there  is  quite  a  boom  in  D.  in  real 
estate;"  that  on  April  20th  the  agent  telegraphed  defendant: 
"Lots  sold  for  $16,000  cash,  mail  you  deed  for  signing  to-day;" 
to  which  defendant  replied:  "Won't  sell  for  less  than  $17,000; 
be  there  May  1st;"  on  May  3d,  the  date  of  her  arrival  in  D., 
the  agent  telegraphed  her:  "Sold  property  for  $17,000  *  *  * 
27th  of  April;"  but  she  did  not  receive  the  telegram  until  she 
had  reached  D.  and  repudiated  the  contract;  held  that  the 
agent  had  no  authority  to  sell  the  property.  Sullivan  v.  Leer, 
29  P.  817,  2  Colo.  App.  141;  Curatola  v.  Venafrana  Ben.  Soc., 
etc.,  70  Pa.  Super.  Ct.  542;  Lee  v.  Lloyd,  181  N.  Y.  Sup.  295. 


SALES  OF  REAL  ESTATE.  157 

Sec.  128.  Advertisement  on  land  as  for  sale  by  agent  insuffi- 
cient to  imply  right  to  sell. 

An  advertisement  put  up  upon  land  offering  it  for  sale,  and 
referring  to  the  owner  and  another  person,  is  not,  in  opposi- 
tion to  a  denial  by  the  owner  of  the  agency  of  such  third  person, 
sufficient  to  imply  in  him  power  to  make  a  sale  of  the  land. 
Mortimer  v.  Cornwell,  1  Hoffm.  (N.  Y.)  Ch.  351. 

Sec.  128a.  Broker  not  entitled  to  commission  where  pur- 
chaser  induced  by  a  catalogue  and  not  by  efforts  of  the 
broker. 

Where  a  catalogue  prepared  by  a  real  estate  broker  listing 
property  placed  in  his  hands  for  sale  happened  into  the  hands  of 
a  subsequent  purchaser,  to  whom  the  broker  made  a  fruitless  ef- 
fort to  show  the  property,  held,  that  the  broker  was  not  the  proxi- 
mate or  procuring  cause  of  the  sale.  Way  v.  Turner,  96  A.  676, 
127  Md.  327. 

Sec.  129.  Authority  to  a  broker  to  find  a  purchaser  gives  no 
right  to  make  a  sale. 

A  letter  to  an  agent  saying:  "As  you  stated  you  could  get 
$30,000  for  the  place  you  occupy,  *  *  *  and  if  you  can,  we  will 
sell  at  that  price  *  *  *  and  allow  you  21/2  per  cent  on  said 
price,"  merely  authorized  the  agent  to  find  a  purchaser,  but 
not  to  sell,  and  a  contract  by  the  agent  to  sell  confers  no  right 
on  the  purchaser.  Grant  v.  Ede,  85  Cal.  418,  24  P.  890;  Sim- 
mons v.  Kramer,  13  S.  E.  902,  88  Va.  411;  Lawson  v.  King 
(Wash.  Sup.  '09),  104  P.  1118. 

Sec.  130.    Where  agent  buys  at  inadequate  price,  by  fraud, 

contract  of  sale  will  be  set  aside. 

Where  an  agent  purchases  property  at  a  grossly  inadequate 
price,  by  the  concealment  of  facts  and  information  relating 
thereto  which  he  was  bound  to  disclose,  the  sale  will  be  set 
aside.  Norris  v.  Taylor,  49  111.  17.  See  also  Sec.  291. 


158  AMEHICAN  LAW  EEAL  ESTATE  AGENCY. 

Sec.  131.    Agent  becoming  purchaser  unknown  to  principal, 
sale  will  be  set  aside. 

"Where  an  agent  becomes  the  purchaser,  without  the  knowl- 
edge of  the  principal,  the  sale  will  be  set  aside.  Fisher's  Ap- 
peal, 34  Pa.  St.  29;  Butler  v.  Haskill,  4  Desau.  (S.  C.)  651; 
Casey  v.  Casey,  14  111.  112.  See  also  Sec.  314. 

Sec.  132.    Contract  to  pay  a  broker  a  commission  on  accepted 

sale,  though  no  effort  required,  upheld. 
A  contract  to  pay  a  broker  a  commission  on  any  accepted 
sale  procured  by  him  will  support  a  recovery  for  such  commis- 
sion, though  it  does  not  bind  the  broker  to  make  any  effort  to 
sell.  Brooks  v.  Leathers,  112  Mich.  463,  70  N.  W.  1099.  Com- 
pare Sees.  552,  585. 

Sec.  133.    Contract  may  require  broker  in  order  to  earn  com- 
missions to  effect  a  sale  at  the  price  limited. 

It  is  clearly  competent  for  the  owner  and  broker  to  agree 
that  the  latter  shall  have  no  compensation  unless  he  shall  effect  a 
sale  at  the  price  limited,  and  the  broker  would  be  bound  by 
such  a  contract.  Hungerford  v.  Hicks,  39  Conn.  259;  Pederson 
v.  Johnson,  172  N.  E.  723,  —  Vt.  Sup.  — .  See  also  Sec.  61. 

Sec.  134.    Sale  at  $350,  when  contract  limited  to  $400,  did 
not  entitle  broker  to  commissions. 

In  an  action  for  commissions  for  effecting  a  sale  of  a  house 
for  defendant,  it  appeared  that  defendant  agreed  to  give  plain- 
tiff $75  if  he  should  sell  the  house  for  $500  before  a  cer- 
tain day,  and  $50  if  he  should  sell  it  for  $400  after  that  time; 
plaintiff  introduced  to  defendant  a  purchaser  who,  after  the 
day  specified,  purchased  the  house  for  $350.  Held,  that  a  judg- 
ment for  plaintiff  for  $35  was  not  sustained  by  the  evidence. 
Blackwell  v.  Adams,  28  Mo.  App.  61 ;  Holbrook  v.  McCarthy,  61 
Cal.  216. 

Sec.  135.    Sale  by  broker  at  $1,500,  after  he  said  he  could 

not  and  asked  lower  terms,  unauthorized. 
"Where  an  agent  authorized  to  sell   for  $1,500,  if  at  once, 
stated  he  could  not  and  asked  for  lower  terms,  and  after  a 


SALES  OF  REAL  ESTATE.  159 

month  with  no  other  authority,  he  sold  for  $1,500,  the  sale  was 
unauthorized.    Matthews  v.  Soule,  12  Neb.  398. 

Sec.  136.  Without  a  special  contract,  broker  to  find  a  pur- 
chaser requires  a  sale  to  be  entitled  to  commissions. 
A  real  estate  broker  employed  by  the  owner,  without  any 
special  agreement,  to  find  a  purchaser,  is  not  entitled  to  claim 
commissions  upon  the  price,  although  he  finds  a  person  willing 
to  purchase  upon  the  terms  fixed,  unless  the  owner  accepts  the 
purchaser  and  an  actual  sale  is  effected;  Pratt  v.  Patterson,  7 
Phila.  (Pa.)  135.  Affirmed  112  Pa.  St.,  475;  this  is  contrary  to 
the  prevailing  doctrine.  Walsh  v.  Hastings,  20  Colo.  243,  38  P. 
324 ;  Gilmore  v.  Bailey,  103  111.  App.  245 ;  Stephens  v.  Scott,  43 
Kan.  285,  23  P.  555;  Dreisbach  v.  Rollins,  39  Kan.  268,  18  P. 
187;  Locke  v.  Griswold,  96  Mo.  App.  527,  70  S.  W.  400;  Pollard 
v.  Banks,  67  Mo.  App.  187;  Crowley  Co.  v.  Meyers,  69  N.  J.  L. 
245,  55  A.  305;  Brumdage  v.  McCormick,  23  N.  Y.  S.  262,  69 
Hun,  65 ;  Gormley  v.  Dangel,  100  N".  E.  1084,  214  Mass.  5 ;  Rey- 
nolds v.  Anderson,  132  P.  322,  37  Okl.  368,  46  L.  R.  A.  114; 
Garver  v.  Thoman,  135  P.  724,  15  Ariz.  38;  Leadville  Mining 
Co.  v.  Hemphill,  149  P.  384,  17  Ariz.  146;  Murray  v.  Miller,  166 
S.  W.  536,  112  Ark.  227,  Ann.  Gas.  1916  B,  974;  McCombs  v. 
Moss,  181  S.  W.  907,  121  Ark.  533 ;  Scott  v.  Cleveland,  183  S.  W. 
197,  122  Ark.  259 ;  Cissel,  Talbot  &  Co.  v.  Hayden,  41  App.  D. 
C.  477;  Addison  v.  Blair,  42  App.  D.  C.  331;  Kice  v.  Dugan,  137 
S.  W.  240,  143  Ky.  676;  Nation  v.  Harness,  126  P.  799,  33  Okl. 
630;  Menton  v.  Richards,  153  P.  1177,  —  Okl.  Sup.  — ;  Cannon 
v.  Bates,  80  S.  E.  581,  115  Va.  711;  Sullivan  v.  Brown,  64  S. 
455,  67  Fla.  133;  Meyer  v.  Keating  Land  &  Mtge.  Co.,  148  N. 
W.  — ,  126  Minn.  409;  Duncan  v.  Turner,  154  S.  W.  816,  171 
Mo.  App.  661 ;  Hammack  v.  Friend,  166  S.  W.  647,  180  Mo.  App. 
472 ;  Griffith  v.  Bradford,  138  S.  W.  1072,  —  Tex.  Civ.  App.  — . 
See  also  Sec.  113. 

Sec.  137.    Sale  by  one  of  rival  brokers  puts  an  end  to  con- 
tract with  the  others. 

Owners  of  property  often  leave  it  for  sale  with  several  dif- 
ferent brokers  at  the  same  time;  in  such  cases  the  several  bro- 
kers have  concurrent  authority  to  sell,  but  a  sale  by  one  of  them, 


160  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

with  the  knowledge  of  the  others,  puts  an  end  to  the  agency  of 
the  others  by  removing  the  subject-matter  of  the  agency;  since 
they  can  have  no  further  power  than  their  principal  has,  and  he 
having,  by  his  agent,  once  sold  the  property  to  one  person,  can 
not  rightfully  sell  it  again  to  another.  Cushman  v.  Glover,  11 
111.  600.  See  also  Sec.  15. 

Where  an  owner  employed  a  broker  to  procure  a  purchaser  for 
a  commission  in  excess  of  a  specified  sum  received  for  the  prop- 
erty, and  the  broker,  without  authority,  employed  a  third  person 
who  brought  about  a  sale  for  more  than  the  specified  sum,  and 
the  owner  accepted  from  the  broker  the  specified  sum  and  con- 
veyed the  land,  without  knowing  that  the  third  person  had 
claimed  to  act  as  his  agent,  the  owner  was  not  liable  to  the  third 
person  for  commissions.  Benham  v.  Ferris,  124  N.  W.  538,  159 
Mich.  632 ;  Belden  v.  Kellwood  Realty  Co.,  131  1ST.  Y.  Supp.  580, 
74  Misc.  Rep.  61. 

Sec.  138.    Whether  agent  was  to  be  paid  commissions  on  both 
auction  and  private  sales  question  for  the  jury. 

The  court  properly  charged  that  as  there  are  different  kinds 
of  sales  of  lands,  and  if  the  contract  does  not  specify  the  kind, 
it  is  for  the  jury -to  determine  from  the  evidence  and  the  letters 
forming  the  contract,  and  the  attending  circumstances,  as  to 
whether  it  included  only  auction  sales,  or  both  auction  and  pri- 
vate sales,  for  which  plaintiff  was  to  receive  commissions.  Cooli- 
gan  v.  Milwaukee  &  Sault  Ste.  M.  Im.  Co.,  79  Wis.  471,  48  N. 
W.  717.  Compare  Sec.  972. 

Sec.  139.    Sale  by  agent  of  property  acquired  from  principal 
liable  to  latter  for  profits. 

Where  a  real  estate  agent  makes  a  purchase  of  land  of  his 
principal,  without  his  knowledge,  using  a  third  party  as  a  me- 
dium through  whom  to  secure  a  deed,  and  then  sells  the  prop- 
erty at  an  advance,  he  will  be  held  accountable  to  the  owner  for 
the  profits  realized.  Merriam  v.  Johnson,  86  Minn.  61,  90  N.  W. 
116;  Krhut  v.  Phares,  80  Kan.  515,  103  P.  117;  Mechem  on  Ag., 
469. 


SALES  OF  REAL  ESTATE.  161 

Sec.  139a.    Party  to  exchange  not  entitled  to  recover  com- 
pensation received  by  broker  from  other  party  thereto. 

Where  plaintiff  fixed  his  own  terms  and  employed  defendant 
merely  to  procure  acceptance,  defendant  being  also  the  agent  of 
the  other  party  to  the  exchange,  and  known  to  plaintiff  to  be  such, 
compensation  received  by  defendant  from  the  other  party  was  not 
a  "secret  profit"  to  which  plaintiff  was  entitled.  Carothers  v. 
Caine,  175  P.  478,  —  Cal.  App.  — . 

Sec.  140.    Sale  without  written  authority  excepted  from  the 
operation  of  the  statute  as  to  employment  of  brokers. 

Where,  in  an  action  by  a  broker  for  commission  on  a  sale  of 
real  estate,  defendant's  answer  admitted  the  employment  of  plain- 
tiff as  a  broker,  and  it  appeared  that  the  contract  of  exchange  of 
properties  negotiated  by  plaintiff  was  signed  through  his  efforts, 
these  facts  took  the  case  out  of  the  purview  of  the  penal  act, 
making  it  a  misdemeanor  for  one  to  offer  real  estate  for  sale 
without  written  authority.  Hough  v.  Baldwin,  99  N.  Y.  S.  545, 
50  Misc.  546. 

Sec.  140a.    Contracts  held  not  within  statute  of  frauds. 

The  promise  of  a  purchaser  to  pay  half  the  commissions 
claimed  by  real  estate  agents  of  the  vendor,  the  vendor  denying 
he  owed  them  anything,  and  stating  that  rather  than  pay  them 
the  trade  would  be  off,  is  not  within  the  statute  of  frauds.  Bar- 
ney &  Hines  v.  Jackson,  66  S.  426,  108  Miss.  169. 

A  contract  with  brokers  to  sell  certain  land  at  a  specified 
price,  within  one  year,  or  within  90  days  thereafter,  if  the  deal 
should  then  be  pending,  and  for  the  payment  of  stated  commis- 
sions, was  a  contract  for  services  to  be  performed  within  one  year, 
and  was  not  required  to  be  in  writing.  Axe  v.  Tolbert,  146  N.  W. 
418,  179  Mich.  556. 

Sec.  141.    Sale  by  second  agent  to  client  of  first,  at  lower 
price,  latter  not  entitled  to  commissions. 

A  real  estate  agent  employed  to  sell  for  a  specific  price  is 
not  entitled  to  his  compensation  on  production  of  a  person  to 
whom  the  property  is  sold  by  another  agent  at  a  lower  price. 


162  AMERICAN  LAW  EEAL  ESTATE   AGENCY. 

"Wolff  v.  Rosenberg,  67  Mo.  App.  403;  Armes  v.  Cameron,  19 
D.  C.  435 ;  Carlson  v.  Nathan,  43  111.  App.  364 ;  Means  v.  Stone, 
44  111.  App.  444 ;  Livezy  v.  Miller,  61  Md.  336 ;  Crowning  shield  v. 
foster,  169  Mass.  237,  47  N.  E.  879 ;  Chandler  v.  Button,  5  Daly 
(N.  Y.)  112;  Powell  v.  Anderson,  15  Daly  219,  4  N.  Y.  S.  706; 
De  Zavola  v.  Rozaliner,  84  N.  Y.  S.  969;  Friedman  v.  Have- 
myer,  56  N.  Y.  S.  97,  37  App.  Div.  518;  Felman  v.  O'Brien,  51 
N.  Y.  S.  309,  23  Misc.  341 ;  Hendricks  v.  Daniels,  19  N.  Y.  S. 
414;  Powell  v.  Lamb,  1  N.  Y.  S.  431;  Land  Mtge.  Bk.  v.  Hargis, 
(Tex.  Civ.  App.  '02),  70  S.  W.  352;  White  v.  Crocker,  226  S.  W. 
1018,  —  Mo.  App.  — .  See  also  Sees.  408,  422.  Compare  Sec. 
454. 

Sec.  142.    Sale  by  owner  before  a  sale  by  agent  bars  commis- 
sions. 

An  owner  of  land  was  solicited  by  plaintiffs  to  place  it  in 
their  hands  for  sale,  and  wrote  that  he  must  have  a  certain  fixed 
price  for  the  land,  and  that  plaintiffs  could  have  all  they  could 
get  over  and  above  that;  plaintiffs  found  a  purchaser,  but  did 
not  notify  the  owner  until  he  had  sold  to  another  person.  Held, 
that  the  plaintiffs  were  not  entitled  to  a  commission.  Helling  v. 
Darby,  71  Kan.  107,  79  P.  1073 ;  Hodge  v.  Appellees,  107  N.  Y. 
S.  170,  122  App.  Div.  437;  Ettinghoff  v.  Harovitz,  100  N.  Y.  S. 
1002,  115  App.  Div.  571.  See  also  Sec.  15.  English  v.  Wm. 
George  Realty  Co.  (Tex.  Civ.  App.  '09),  117  S.  W.  996;  Reeves 
v.  Ness,  135  N".  W.  595,  —  Iowa,  — ;  Hease  v.  Ullman,  131  N.  Y. 
Sup.  1050,  148  App.  Div.  40;  Barrow  v.  Newton,  55  Pa.  Super. 
Ct.  387;  Cleveland-Cliffs  Iron  Co.  v.  Gamble,  201  P.  329,  119 
C.  C.  A.  507;  Ferguson  v.  Willard,  196  P.  370,  116  C.  C.  A.  406; 
Dreyfus  v.  Richardson,  130  P.  161,  20  Cal.  App.  800;  Tebo  v. 
Weld,  92  A.  876,  5  Boyce,  255  (Del.  Super.) ;  Hill  v.  Horsley, 
82  S.  E.  225,  142  Ga.  12;  Humphreys  &  Jackson  v.  Smith,  63 
S.  E.  248,  5  Ga.  App.  340;  Moore  v.  May,  73  S.  E.  29,  10  Ga. 
App.  198;  Stallworth  v.  Martin  Oslorn  Realty  Co.,  87  S.  E. 
1094,  17  Ga.  App.  689;  Doggett  v.  Greene,  98  N.  E.  219,  254 
111.  134,  Ann.  Gas.  1913  B,  1166,  rev.  judg.  163  111.  App.  369; 
Donnewitz  v.  Miller,  179  111.  App.  185;  Barney  v.  Yazoo  Delta 
Land  Co.,  101  N".  E.  96,  179  Ind.  337;  McPike  v.  Siver,  150  N.. 


SALES  OF  REAL  ESTATE.  163 

W.  52,  168  Iowa,  149 ;  Crawford  v.  Cicotte,  152  N.  W.  1065,  186 
Mich.  269;  Hurtthal  v.  Dalberg,  153  S.  W.  1066,  168  Mo.  App. 
538;  Lanx  v.  Hoyl,  123  P.  949,  45  Mont.  445;  Shober  v.  Black- 
ford,  127  P.  320,  46  Mont.  194;  Parkhurt  v.  Tryon,  119  N.  Y. 
Sup.  184,  134  App.  Div.  843;  Wallace  v.  Atkinson,  152  P.  1094, 
—  Okl.  Sup.  — ;  Head-Berry  Co.  v.  Bannister,  153  P.  669;  Grif- 
fith v.  Cowan,  57  Pa.  Super.  Ct.  625;  Granger  E.  E.  Exc.  v. 
Anderson,  145  S.  W.  262,  —  Tex.  Civ.  App.  — ;  Hammond  v. 
Man,  124  P.  377,  69  Wash.  204,  40  L.  E.  A.  (N.  S.)  1142;  Lord 
v.  Wapato  Inv.  Co.,  142.  P  1172,  81  Wash.  561,  judg.  aff.  on  re. 
152  P.  329,  84  Wash.  696;  Long  v.  Flory  &  Garber,  72  S.  E. 
723,  112  Va.  721 ;  Westerman  v.  Peer  Inv.  Co.,  195  S.  W.  78,  — 
Mo.  App.  — ;  Irwin  v.  Moore,  212  S.  W.  710,  —  Tex.  Civ.  App. 
— ;  Case  v.  Ralph,  188  P.  640,  —  Utah  Sup.  — ;  Ludeman  v. 
English,  189  P.  531,  —  Okl.  Sup.  — ;  CooJc  v.  Salisbury,  225  S. 
W.  112,  —  Mo.  App.  — .  See  also  Sec.  454. 

Sec.  142a.    Broker  entitled  to  commission  for  sale  made  by 
the  owner. 

A  stipulation  in  a  broker's  contract  for  compensation  in  the 
event  of  a  sale  hy  the  owner  himself  is  valid,  where  the  broker 
has  used  ordinary  diligence  to  make  a  sale  of  the  property.  Put- 
rell  v.  Reeves,  176  S.  W.  1151,  165  Ky.  282. 

The  owner  of  land  may  not,  while  it  is  in  the  hands  of  a 
broker  for  sale,  consummate  a  sale  with  one  who  has  become  in- 
terested as  proposed  purchaser  through  the  broker's  efforts,  and 
thereupon  escape  liability  for  a  commission.  De  Perow  v. 
Groomes,  42  App.  D.  C.  227;  Treacy  v.  Oilman,  171  S.  W.  153, 
161  Ky.  513;  American  Trust  Co.  v.  Goode,  80  S.  E.  62,  164  N. 
C.  19;  Id.  83  S.  E.  550,  167  N.  C.  338;  Warne  v.  Johnston,  48 
Pa.  Super.  Ct.  98. 

Sec.  142b.     Broker  not  entitled  to  commission  on  sale  by 
owner  after  end  of  employment. 

Broker  not  entitled  to  a  commission  upon  a  sale  of  the  prop- 
erty by  the  owner  after  the  time  allowed  the  broker  for  procur- 
ing a  purchaser,  though  sale  afterwards  resulted  from  broker's 
offer.  Slotboom  v.  Simpson  Lumber  Co.,  136  P.  641,  67  Or.  516, 


164  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Ann.  Gas.  1915  C,  339,  den.  re.  135  P.  889,  67  Or.  516 ;  Morris 
v.  Jackson,  72  S.  E.  444,  9  Ga.  App.  848;  Lewis  v.  Manson,  61 
S.  835,  132  La.  817. 

Sec.  143.    Where  vendor  and  'Customer  disagree  as  to  terms 

of  sale,  and  broker  acquiesces,  bars  commissions. 
A  real  estate  agent  is  not  entitled  to  commissions  for  a  sale 
of  land,  where,  before  the  completion  of  the  sale  the  parties 
disagree  as  to  terms,  and  the  transaction  is  considered  at  an 
end,  if  the  agent  acquiesces  in  such  rescission  of  the  contract, 
though  the  owner  subsequently  places  it  in  the  hands  of  another 
agent  who  sells  it  on  practically  the  same  terms  to  the  pur- 
chasers secured  by  the  first  agent,  unless  fraud  or  bad  faith 
be  shown.  Girardieu  v.  Gibson,  122  Ga.  313,  50  S.  E.  91. 

Sec.  144.    Sale  for  cash  is  complied  with  by  broker  selling  to 
be  paid  on  execution  of  deed. 

Where  the  terms  of  a  contract  between  the  owner  of  land 
and  a  broker  who  was  to  procure  a  purchaser,  required  a  cash 
provided  that  if  the  owner  desired  to  retain  possession  for  a 
time  he  could  do  so  by  paying  interest  on  the  money,  a  cash 
sale  was  provided  for.  Fisher  v.  Bell,  91  Ind.  243. 

Sec.  145.    Broker  selling  contract  of  sale,  vendee  refusing  to 

assign,  entitled  to  commissions. 

Where  plaintiffs  were  employed  as  brokers  to  sell  a  contract 
for  the  sale  of  real  estate  at  a  profit  of  $1,000  net  to  their 
clients,  and  they  produced  a  purchaser  ready,  able  and  willing 
to  take  the  contract  on  the  terms  prescribed,  but  defendant 
refused  to  assign  the  same,  and  sold  it  to  another,  plaintiffs 
performed  their  obligations  and  were  entitled  to  recover  com- 
missions. Levy  v.  Trimble,  94  N.  Y.  S.  3,  47  Misc.  394. 

Sec.  146.    Sale  of  public  land,  broker  to  recover  commissions 

must  show  he  effected  attendance  of  purchaser. 
Where  a  real  estate  broker  claims  compensation  for  securing 
the  attendance  of  a  purchaser  at  a  public  land  sale,  he  must 
at  least  show  he  had  some  effect  upon  the  purchaser's  attend- 
ance.   Perkins  v.  Underhill,  103  N.  Y.  S.  25,  118  App.  Div.  170. 


SALES  OF  REAL  ESTATE.  165 

Sec.  147.    Plaintiff  to  plat  and  sell,  and  pay  $150  an  acre  to 

defendant,  was  a  contract  for  the  sale  of  lands. 
A  contract  whereby  defendant  agreed  to  sell  plaintiff,  or 
his  assigns,  certain  lands  for  $150  per  acre,  plaintiff  to  plat 
the  land  and  sell  it,  and  to  pay  the  proceeds  to  defendant  until 
the  latter  had  received  $150  per  acre,  was  a  contract  for  the 
sale  of  lands,  not  a  mere  brokerage  contract  which  defendant 
had  a  right  to  forfeit  by  reason  of  non-performance.  Whipple 
v.  Lee,  46  Wash.  266,  89  P.  712. 

Sec.  148.    Broker  failing  to  sell,  and  owner  by  reducing  price 
selling  to  customer,  not  entitled  to  commissions. 

Where  a  broker's  efforts  to  procure  a  purchaser  fail,  because 
of  the  purchaser's  refusal  to  purchase  on  the  terms  fixed  by 
the  broker,  and  the  negotiations  between  them  are  broken,  the 
fact  that  the  owner  subsequently  negotiated  with  the  customer 
and  effected  a  sale  to  him  in  consequence  of  modifying  the  terms 
thereof,  does  not  entitle  the  broker  to  commissions.  Schaue  v. 
Starch,  107  N.  Y.  S.  26,  56  Misc.  484.  See  also  Sec.  447. 


CHAPTER  III. 
EXCHANGES  OF  REAL  ESTATE. 

Sec.  149.    In  estimating   commissions  on  an  exchange,  the 

actual  and  not  the  trade  value  is  the  basis. 
In  estimating  the  commissions  for  a  sale  8f  real  estate,  where 
part  of  the  price  was  paid  in  town  lots,  the  actual  and  not 
the  trade  value  of  the  property  should  be  considered.  Boyd  v. 
Watson,  101  Iowa,  214,  70  N.  W.  120;  Porter  v.  Hollingsworth, 
62  N.  Y.  S.  796,  30  Misc.  628 ;  Colland  v.  Trepet,  70  111.  App. 
228;  Davidson  v.  Wills  (Tex.  Civ.  App.  '06),  96  S.  W.  634.  See 
also  Sec.  185. 

Sec.  150.    Broker  to  effect  exchange  ordinarily  entitled  to 

commissions  on  execution  of  contract  therefor. 
A  broker  employed  to  effect  an  exchange  of  land  ordinarily 
becomes  entitled  to  a  commission  upon  the  execution  of  a  con- 
tract therefor.  Blaydos  v.  Adams,  35  Mo.  App.  526 ;  Shanks  v. 
Michael  4  Cal.  App.  553,  88  P.  596;  Rohkohl  v.  Sussman,  113 
N.  Y.  Sup.  586,  61  Misc.  Eep.  246;  Carrington  v.  Smithers,  147 
P.  225,  26  Cal.  App.  460;  Keinath,  Schuster  &  Hudson  v.  Reed, 
137  P.  841,  18  N.  M.  358 ;  Carroll  v.  Laf green,  170  111.  App.  328 ; 
Mercantile  Trust  Co.  v.  Johnson,  160  S.  W.  535,  177  Mo.  App. 
503 ;  Duncan  v.  Turner,  154  S.  W.  816,  171  Mo.  App.  661 ;  Jen- 
nings v.  Overholt,  172  S.  W.  440,  186  Mo.  App.  505 ;  Deweese  v. 
Brown,  135  P.  800,  55  Colo.  430;  Jauman  v.  McCusick,  137  P. 
254,  166  Cal.  517.  See  also  Sec.  186. 

Sec.  151.  Broker  may  recover  commissions  for  effecting  an 
exchange  though  property  received  not  discussed  in  the 
negotiations. 

Where  a  vendor  employs  a  broker  to  bring  about  an  exchange 
of  realty,  and  the  broker  brings  the  owner  and  another  together, 
166 


EXCHANGES   OF   EEAL   ESTATE.  167 

lie  may  recover  his  commissions  on  an  exchange,  although  the 
property  received  was  not  that  under  discussion  when  the  broker 
last  appeared  in  the  negotiations.  French  v.  McKay,  181  Mass. 
485,  63  N".  E.  1068. 

Sec.  151a.     Broker  not  entitled  to  commission  on  exchange 
effected  with  his  customer  by  another  broker. 

A  broker  can  not  recover  commission  where  he  introduced  a 
party  for  the  purpose  of  effecting  an  exchange  of  property,  and 
thereafter  an  exchange  is  made  to  such  purchaser  by  another 
broker  for  different  lands  than  contemplated  in  the  first  trans- 
action. Young  v.  Dempsey,  67  Pa.  Super.  Ct.  534. 

Sec.  152.    Where  principal  receives  good  title  to  property  con- 
veyed cannot  defeat  broker's  commissions  for  exchage. 

Where  the  principal  in  an  exchange  of  property  actually 
receives  a  good  title  to  the  property  conveyed  to  him,  he  can 
not  defeat  an  action  by  his  broker  for  commissions  on  the 
ground  that  his  contract  to  sell  was  invalid.  Schlevinger  v. 
Jud,  70  N.  Y.  S.  616,  61  App.  Div.  453. 

Sec.  153.    Broker  supplying  person  willing  to  exchange  must 
show  customer  able  before  he  can  recover  commissions. 

A  real  estate  agent  who  finds  a  purchaser  on  the  terms  fixed 
by  the  owner  of  the  property,  such  purchaser  being  ready, 
willing  and  able  to  take  a  conveyance  and  pay  the  purchase 
price,  has  earned  his  commissions;  the  fact  that  the  contract 
involved  an  exchange  of  lands,  does  not  change  the  rule  an- 
nounced. Herscher  v.  Wells,  103  111.  App.  418;  Moshowitz  v. 
Hornberger,  38  N.  Y.  S.  114,  15  Misc.  645 ;  Freedman  v.  Gordon, 
4  Colo.  App.  343,  35  P.  879;  Davis  v.  Gottschalic,  141  N.  Y.  Sup. 
517,  80  Misc.  Eep.  530;  Mathews  v.  Globe-Star  Realty  Co.,  167 
S.  W.  764,  —  Tex.  Civ.  App.  — ;  Stackell  v.  Hayes,  137  K  Y. 
Sup.  854;  Stewart  v.  Will,  131  P.  1027,  65  Or.  138;  Lanham  v. 
Cockrell,  194  S.  W.  936,  aff.  judg.  Civ.  App.,  152  S.  W.  189;  — 
Tex.  Sup.  — ;  Hadde  v.  Milone  R.  E.  Co.,  196  S.  W.  347,  — 
Tex.  Civ.  App.  — ;  Line  v.  Felder,  208  S..W.  409,  —  Tex.  Civ. 
App.  — ;  Morrison  v.  Jackson,  85  S.  573,  —  Ala.  App.  — . 


168  AMEBICAN  LAW  SEAL  ESTATE  AGENCY. 

Sec.  154.  That  customer  does  not  own  property  offered,  no 
ground  for  principal's  refusal,  where  he  has  a  contract 
for  the  purchase  of  the  land,  to  exchange. 

Although  the  customer  does  not  own  the  fee  of  the  property 
offered  by  him,  this  is  insufficient  ground  for  the  principal's 
refusal  to  make  the  exchange,  where  the  customer  has  a  contract 
for  the  purchase  of  the  property,  and  is  ready  and  willing  to 
carry  out  the  agreement.  Bauman  v.  Nevins,  65  N.  Y.  S.  84,  52 
App.  Div.  290.  See  also  Sees.  87,  180. 

Sec.  154a.  That  he  owned  only  half  interest  in  property  no 
excuse  for  failure  to  pay  broker. 

Fact  that  one  who  engaged  a  realty  broker  to  sell  land  owned 
only  a  half  interest  was  no  justification  for  his  failure  to  convey 
title,  and  excusing  his  refusal  to  pay  the  broker  who  procured  a 
purchaser,  he  having  stated  at  the  time  the  broker  was  engaged 
that  his  title  was  good.  Jansen  v.  Mitchell,  209  S.  W.  495,  — 
Tex.  Civ.  App.  — . 

Sec.  155.  That  land  was  conveyed  to  customer  in  fraud  of 
grantor's  creditors  no  ground  for  refusal  to  exchange. 

The  fact  that  the  land  was  conveyed  to  the  customer  in  fraud 
of  his  grantor's  creditors,  where  such  grantor  had  an  absolute 
title,  is  no  ground  for  the  principal's  refusal  to  complete  the 
exchange,  where  the  creditors  have  not  impeached  the  con- 
veyance. Mason  v.  Hinds,  19  N.  Y.  S.  996.  In  another  case  the 
contrary  doctrine  was  sustained.  Moskowitz  v.  Horriberger,  46 
N.  Y.  S.  462,  20  Misc.  558. 

Sec.  156.    To  recover  commissions  for  an  exchange  which  fails 
by  defect  in  customer's  title,  the  broker  must  have  acted 
in  good  faith. 
To  entitle  a  broker  to  a  commission,  where  the  exchange  falls 

through  because  of  a  defect  in  the  customer's  title,  the  broker 

must  have  acted  in  good  faith.     Games  v.  Howard,  180  Mass. 

569,  63  N.  E.  122;  Roche  v.  Smith,  176  Mass.  595,  58  N.  E.  152; 

Rockwell  v.  Newton,  44  Conn.  333. 


EXCHANGES   OF   HEAL   ESTATE.  169 

Sec.  156a.     Broker  to  an  exchange  required  to  act  in  good 
faith  to  both  parties. 

A  broker  for  both  parties  to  an  exchange  of  land  owes  to  each 
the  same  good  faith  that  he  would  have  owed  to  either  had  he 
been  a  single  agent.  Dauglierty  v.  Stocks,  172  S.  W.  616,  185  Mo. 
App.  541.  Broker  employed  to  procure  a  purchaser  must  act  in 
the  interest  of  the  owner  and  must  disclose  to  him  any  knowl- 
edge relating  to  prospective  purchasers.  Dickinson  v.  Tyson,  103 
N.  E.  703,  209  N.  Y.  395,  rev.  judg.  132  N".  Y.  Sup.  1126,  148 
App.  Div.  894. 

Sec.  157.    Broker  does  not  earn  commissions  for  an  exchange 
by  producing  an  irresponsible  customer. 

A  broker  employed  to  carry  out  an  exchange  of  lands  does  not 
earn  his  commissions,  where  he  brings  to  his  employer  a  person 
who  assumes  to  contract  as  owner,  although  he  is  not,  of  which 
fact  the  broker  knows,  and  within  the  few  days  allowed  for  per- 
formance proves  unable  to  perform  his  contract  and  is  irrespon- 
sible. Burnham  v.  Upton,  174  Mass.  408,  54  N.  E.  873 ;  Norman 
v.  Reutlier,  54  N.  Y.  S.  152,  25  Misc.  161;  Mason  v.  Small,  109 
S.  W.  822,  130  Mo.  App.  249;  Bird  v.  Rowell,  167  S.  W.  1172, 
180  Mo.  App.  421;  Wiley  v.  Stormont,  38  App.  D.  C.  99;  Con- 
nor v.  Higgins,  132  P.  849,  21  Gal.  App.  756 ;  Schmidt  v.  Dunne, 
163  N.  Y.  Sup.  515.  See  also  Sec.  1053b. 

Sec.  157a.     To  earn  commission,  broker  must  produce  one 
willing  to  exchange  on  stated  terms. 

A  broker  employed  to  procure  a  person  ready,  able  and  willing 
to  contract  for  an  exchange  of  real  estate  on  terms  satisfactory 
to  both  parties  to  the  exchange,  is  not  entitled  to  a  commission 
unless  he  produces  a  person  willing  to  exchange  on  the  terms 
named  by  the  owner.  Bucksdorf  v.  Bender,  141  N.  Y.  Supp.  515, 
80  Misc.  Rep.  498;  Davis  v.  GottschalTc,  141  N.  Y.  Sup.  517,  80 
Misc.  Eep.  530. 

Sec.  158.    Ability  to  make  exchange  does  not  depend  on  finan- 
cial responsibility  but  on  ownership  of  the  property. 

The  broker  must  show  that  the  purchaser  is  able  to  make  the 
exchange,  and  this  ability  is  not  proved  by  the  mere  production 


170  AMEEICAN  LAW  HEAL   ESTATE  AGENCY. 

of  deeds  on  his  part,  without  some  showing  that  he  also  had 
title  to  the  properties  he  was  willing  to  deed.  His  ability  does 
not  depend  upon  general  financial  standing,  but  upon  his  being 
the  owner  of  the  land  it  was  proposed  to  exchange.  Herscher  v. 
Wells,  103  111.  App.  418. 

Sec.  158a.    Purchaser  financially  able,  though  he  had  to  bor- 
row part  of  purchase  money. 

That  a  customer  procured  by  a  real  estate  agent  was  financially 
able,  so  as  to  entitle  a  broker  to  a  commission,  is  sufficiently 
shown  by  the  fact  that  he  bought  on  the  authorized  terms, 
though  he  had  to  borrow  part  of  the  purchase  money.  Elwood- 
Emerson  Land  Co.  v.  Bleasdale,  139  N.  W.  554,  —  Iowa  Sup.  — . 

Sec.  159.    Formal  contract  to  convey  property  in  exchange 
not  sufficient  prima  facie  evidence  of  title  thereto. 

The  customer's  ability  is  not  proved  by  the  mere  production 
of  deeds  on  his  part,  without  some  showing  that  he  also  had 
title  to  the  property  he  was  willing  to  deed.  Herscher  v.  Wells, 
103  111.  App.  418.  Compare  Sees.  161,  190. 

Sec.  160.    Petition  alleging  failure  to  make  exchange  defective 
in  alleging  contract  to  procure  a  purchaser. 

Where  a  petition  alleges  the  failure  of  defendant  to  make 
an  exchange  of  property  procured  by  the  plaintiff,  it  was  held 
defective  in  alleging  a  contract  to  procure  a  purchaser,  with 
an  implied  contract  to  pay  the  reasonable  value  of  the  services, 
consequently  there  was  no  breach  of  contract  for  which  the 
defendant  was  liable  in  damages  to  the  plaintiff,  and  the  de- 
murrer was  properly  sustained.  Mulhall  v.  Bradley,  etc.,  Co., 
63  N.  Y.  S.  732,  50  App.  Div.  179. 

Sec.  161.    Deed  of  conveyance  competent  to  prove  exchange. 

The  defendant  having  assented  to  the  terms  of  the  written 
agreement  to  exchange,  the  agreement  and  the  deed  of  con- 
veyance were  competent  evidence  of  the  sale  and  the  considera- 
tion thereof.  Hewitt  v.  Brown,  21  Minn.  163;  Folinsbee  v. 
Sawyer,  157  N.  Y.  196,  51  N.  E.  994;  Levy  v.  Coogan,  9  N.  Y.  S. 
534,  16  Daly  137;  Cannon  v.  Castleman,  24  Ind.  App.  188,  55 
N.  E.  111.  Compare  Sec.  159. 


EXCHANGES   OF  REAL   ESTATE.  171 

Sec.  162.  Participating  without  employment  in  an  exchange, 
broker  not  entitled  to  commissions. 

One  participating  without  employment  or  authority  in  a 
transaction  resulting  in  an  exchange  of  property  is  not  entitled 
to  a  commission.  Merrill  v.  Latham,  8  Colo.  App.  263,  45  P. 
524.  See  also  Sec.  17. 

Where  broker  was  employed  by  one  party  to  a  trade,  that  the 
other  secured  a  benefit  from  the  broker's  services  in  the  selling 
of  his  property  would  not  authorize  inference  that  there  was  an 
implied  promise  to  pay  a  commission.  Yockum  v.  Gassett,  200 
S.  W.  582,  —  Tex.  Civ.  App.  — . 

Sec.  163.  One  may  recover  from  party  in  default  in  an  ex- 
change the  commissions  paid  to  the  broker. 
Where  an  owner  of  real  estate  has  contracted  to  exchange  it 
for  property  owned  by  another,  whom  a  broker  he  employed 
has  produced,  the  contract  providing  that  the  land  should  be 
conveyed  by  each  to  the  other  within  twenty  days  by  a  good 
and  sufficient  warranty  deed,  such  owner  may  recover  from 
the  customer  the  amount  of  the  commissions  paid  to  the  broker, 
where  such  customer  is  unable  to  convey  a  good  title  to  his 
property.  Roche  v.  Smith,  176  Mass.  595,  58  N.  E.  152;  Volke 
v.  Fisk  (N.  J.  Ch.  '09),  72  A.  1011. 

Sec.  164.  Where  pieces  of  property  are  given  for  others  and 
the  difference  paid  in  cash,  a  sale  and  not  an  exchange. 

A  transaction  by  which  certain  pieces  of  property  are  given 
for  others,  a  definite  price  being  put  on  each,  and  the  difference 
paid  in  cash,  is  a  sale  and  not  an  exchange.  Thornton  v.  Moody 
(Tev.  Civ.  App.  '93),  24  S.  W.  331;  Ullman  v.  Land,  84  S.  W. 
294,  37  Tex.  Civ.  App.  422. 

To  constitute  an  exchange,  the  value  of  the  estates  should  be 
equal.  Bouvier,  L.  D.,  citing  Coke-Litt.  50. 

Sec.  165.  Broker  making  exchange,  where  principal  made 
contract,  not  responsible  for  misrepresentations  made  in 
good  faith. 

Where  a  real  estate  broker  employed  to  sell  land  negotiates  an 
exchange  for  other  lands,  his  principal  making  the  contract,  there 


172  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

is  no  legal  duty  devolving  upon  the  broker  to  ascertain  correctly 
the  facts  affecting  the  value  of  the  lands  received  in  exchange, 
and  for  misrepresentations  made  to  his  principal  in  good  faith 
concerning  the  same  he  is  not  responsible.  Coe  v.  Ware,  40 
Minn.  404,  42  N.  W.  205;  Hussey  v.  Michael,  138  P.  596,  91  Kan. 
542.  See  also  Sec.  454. 

Sec.  165a.    Broker  entitled  to  commission  for  exchange  with 
person  purporting  to  be  agent  of  another. 

That  the  broker  employed  to  procure  an  exchange  of  prop- 
erty for  defendant  produced  a  person  purporting  to  act  as  agent, 
with  whom  defendant  effected  an  exchange,  the  broker  could  re- 
cover commissions  without  showing  that  the  person  with  whom 
defendant  exchanged  property  was,  in  fact,  the  agent  of  the  pur- 
ported principal,  defendant,  by  contracting  with  the  person  pro- 
duced, having  relieved  the  broker  of  responsibility  for  the  agent's 
authority  to  make  the  exchange.  Callister  v.  Wichern,  131  N".  Y. 
Sup.  611,  147  App.  Div.  14. 

Sec.  165b.    Broker  not  entitled  to  commission  where  party  to 
exchange  was  irresponsible. 

An  agent  held  not  entitled  to  a  commission  for  procuring  a 
contract  for  an  exchange  of  certain  properties,  where  it  appeared 
that  the  contract  had  been  fraudulently  altered  by  the  agent, 
and  that  the  person  procured  was  not  able,  ready  and  willing  to 
perform.  Van  Horn  v.  Wetterhold,  154  P.  274,  97  Kan.  126. 

Sec.  166.    Error  to  prevent  defendant  showing  that  broker  to 

effe<#  exchange  was  secretly  employed  by  other  party. 
In  an  action  by  a  real  estate  broker  to  recover  commissions 
on  an  exchange  of  property  effected  by  him,  it  appearing  that 
plaintiff  was  in  the  employ  of  both  parties  to  the  exchange,  the 
court  erred  in  excluding  the  testimony  of  the  defendant  tend- 
ing to  show  that  it  was  ignorant  of  the  double  employment  of 
plaintiff,  of  which  plaintiff  testified  that  defendant  was  in- 
formed. Condit  v.  Sill,  18  N.  Y.  S.  97. 


EXCHANGES   OF   REAL   ESTATE.  173 

Sec.  167.    Power  to  sell  land  does  not  include  power  to  lease 

or  exchange  it. 

A  power  to  sell  land  does  not  include  the  power  to  lease  or 
exchange  it.  Trudo  v.  Anderson,  10  Mich.  357;  Lampkin  v. 
Wilson,  5  Heisk.  (Tenn.)  555;  Reese  v.  Medlock,  27  Texas  120; 
Lucas  v.  County  Rec.  Cass  Co.,  75  Neb.  351,  106  N.  W.  217. 

Sec.  168.    Styling  himself  agent  for  others  in  a  contract  of 
exchange  bound  himself. 

Where  a  person  in  a  contract  for  the  exchange  of  lands  styled 
himself  "agent  for  others,"  but  without  stipulating  in  their 
names  or  undertaking  to  bind  them  as  their  agent,  it  was  held 
that  he  was  named  as  agent  by  way  of  recital  only,  and  that 
he  was  personally  liable  on  the  contract  and  entitled  to  its 
benefits.  Couch  v.  Ingersoll,  2  Pick.  (Mass.)  292.  See  also 
Sec.  383. 

Sec.  169.    Exchange  made  by  owner  and  broker  did  nothing, 
latter  not  entitled  to  commissions. 

A  broker  can  not  recover  on  a  contract  fhat  he  should  have 
commissions  for  effecting  an  exchange  of  property  with  another, 
where  he  did  nothing  under  the  contract  and  does  not  show  that 
he  was  excused  from  rendering  services  under  his  employment, 
although  the  trade  was  consummated  by  the  owner.  Walton  v. 
McMorrow,  57  N.  Y.  S.  691,  39  App.  Div.  667.  See  also 
Sees.  19,  21,  454,  558. 

Sec.  169a.    Introducing  broker  to  an  exchange  held  not  en- 
titled  to  commission  when  effected  by  another. 

Plaintiff,  who  introduced  defendant  to  the  owner  of  city  prop- 
erty, for  which  defendant  afterwards  exchanged  his  land;  held, 
not  entitled  to  a  commission  where,  on  the  first  proposal,  defend- 
•ant  refused  to  exchange,  and  another  brought  about  the  exchange 
after  the  city  property  had  been  greatly  improved.  Sprague  v. 
Seever,  170  S.  W.  365,  185  Mo.  App.  318. 

Sec.  170.    Where  an  exchange  was  wrongfully  broken  off  by 
principal,  broker  entitled  to  commissions. 

Plaintiff,  employed  by  defendant  to  sell  or  trade  certain  land 
for  him,  procured  an  agreement  for  a  trade  with  the  owner  of 


174  AMEBICAN  LAW  EEAL  ESTATE  AGENCY. 

other  lands,  but,  before  the  deeds  were  delivered  by  the  parties, 
on  plaintiff's  claiming  commissions  from  agents  of  defendant,  to 
whom  he  -had  meantime  given  control  of  all  his  real  estate,  they 
declared  the  trade  "off".  Held,  that  plaintiff  could  recover  com- 
missions from  defendant  if  such  exchange  was  so  broken  off  or 
rescinded  by  his  authority.  Blaydos  v.  Adams,  35  Mo.  App.  526; 
Cotton  v.  Meadows,  147  S.  W.  221,  163  Mo.  App.  723;  Johnson 
v.  Stewart  &  Hay  Bdg.  Co.,  153  S.  W.  511,  171  Mo.  App.  543; 
Hull  v.  Eidt-Summerfield  Co.,  204  S.  W.  480,  —  Tex.  Civ.  App. 
— ;  Stout  v.  Thornhill,  79  S.  W.  154,  —  Tex.  Civ.  App.  — . 

Broker  entitled  to  commission  for  an  exchange  which  the  owner 
wrongfully  refused  to  complete.  Hege,  Hachez,  Phillips  &  Co* 
v.  Hessel,  107  P.  375,  57  Wash.  499. 

Sec.  171.    Meaning  of  term  "net  rental"  of  property  received 

in  exchange. 

Where  a  contract  between  the  owner  of  property  and  a  broker 
who  undertook  to  bring  about  an  exchange  for  certain  other 
property,  provided  that  such  property  should  have  an  annual 
net  rental  of  a  specified  sum,  it  meant  that  it  should  yield  that 
amount  above  all  liabilities  to  the  owner,  such  as  taxes,  assess- 
ments, etc.  McVicker,  etc..  Realty  Co.  v.  Garth,  97  N.  Y.  S. 
640,  111  App.  Div.  294. 

Sec.  172.    Broker  for  compensation  has  no  interest  or  title 

in  either  of  the  properties  exchanged. 

A  broker  bringing  about  an  exchange  of  properties  between 
the  owners  thereof,  pursuant  to  an  agreement  with  one  of  them 
stipulating  that  he  will  pay  to  the  broker  certain  sums  on  the 
signing  of  a  contract,  passing  of  the  title,  and  on  a  sale  of 
the  acquired  land,  has  no  title  or  interest  in  either  of  the  prop- 
erties. Lindheim  v.  Gen.  Nat.  Realty,  etc.,  Co.,  97  N.  Y.  S. 
619,  111  App.  Div.  275;  Mitschen  v.  Swensen  (Or.  Sup.  '09), 
99  P.  277.  See  Sec.  16. 

Sec.  173.    Mere  offer  by  other  party  to  pay  broker  does  not 

show  employment  where  broker  did  not  accept. 
A  statement  by  one  party  to  an  exchange  of  real  estate  that 
he  had  offered  to  pay  the  broker  employed  by  the  other  party  a 


EXCHANGES   OF  HEAL  ESTATE.  175 

commission  does  not  show  that  the  broker  accepted  employment 
by  both  parties,  where  he  admits  the  offer,  but  states  that  he 
did  not  accept  it.  Lebowitz  v.  Colligan,  45  N.  Y.  S.  373,  18 
App.  Div.  624.  See  Sec.  72. 

Sec.  174.    Agreement   by   broker   to   wait   for   payment   of 

accrued  commissions  unsupported  by  a  consideration. 
In  an  action  by  a  broker  to  recover  commissions  on  an 
exchange  of  property  effected  by  him,  whether  a  written  agree- 
ment by  plaintiff  to  wait  for  his  commissions  until  title  closed, 
was  signed  before  or  after  the  signing  of  the  contract  of  ex- 
change was  immaterial,  where  all  the  terms  of  the  written 
contract  of  exchange  were  fully  agreed  on,  on  the  preceding 
day,  the  subsequent  agreement  to  wait  for  the  accrued  commis- 
sions being  unsupported  by  a  consideration.  Hough  v.  Bald- 
win, 99  N.  Y.  S.  545,  50  Misc.  546.  See  also  Sec.  19. 

Sec.  175.    Broker  effecting  exchange  entitled  to  commissions 

although  terms  were  changed  by  the  parties. 
A  broker  employed  to  procure  a  purchaser  for  premises  at  a 
specified  price,  part  cash,  and  the  balance  secured  by  mort- 
gage, procured  a  third  person  to  enter  into  a  contract  with  the 
husband  of  the  owner  for  an  exchange  of  the  premises  for 
other  property;  the  owner  conveyed  the  premises  to  the  pur- 
chaser pursuant  to  the  arrangement.  Held,  that  the  broker  was 
entitled  to  his  commission,  though  the  transfer  was  made  on 
other  terms  than  those  originally  proposed,  and  though  the  con- 
veyance was  executed  after  the  expiration  of  the  time  fixed  to 
procure  a  purchaser.  Southwick  v.  Swavienzki,  99  N.  Y.  S. 
1079,  114  App.  Div.  681 ;  Reid  v.  NcNirney,  128  Iowa,  350,  103 
N.  W.  1001 ;  Shanks  v.  Michael,  4  Cal.  App.  553,  88  P.  596.  See 
Sec.  14. 

Sec.  175a.    Broker  barred  commission  where  he  fraudulently 
altered  the  contract. 

Broker  not  entitled  to  a  commission  for  procuring  an  exchange 
where  the  contract  was  fraudulently  altered  by  him.  Van  Horn 
v.  Wetterhold,  154  P.  270,  97  Kan.  126. 


176  AMETITCA'X   LAW   KEAL   ESTATE    AGENCY. 


Sec.  176.  Contract  for  effecting  exchanges  held  to  be  severable. 
Evidence  was  held  conclusive  that  a  contract  by  which  ap- 
pellant agreed  to  pay  respondent  a  commission  of  one  dollar 
per  acre  for  procuring  contemplated  exchanges  of  real  estate, 
was  not  an  entire  but  a  severable  contract;  the  respondent  was 
entitled  to  his  commissions  upon  effecting  one  of  the  contem- 
plated trades,  and  the  court  did  not  err  in  so  instructing  the 
jury.  Goodspeed  v.  Miller,  98  Minn.  457,  108  N.  W.  817.  See 
also  Sec.  496.  Compare  Sec.  493.  Mechem  on  Ag.,  Sec.  634. 

Sec.  177.    Exchange  defeated  by  existence  of  lease  broker  not 

entitled  to  commissions. 

Plaintiff,  a  real  estate  broker,  secured  a  customer  to  take 
defendant's  premises  in  exchange  for  his  own,  and  to  pay 
defendant  for  the  difference  in  the  value  of  the  equities;  no 
time  was  stipulated  as  to  when  the  exchange  should  take  effect, 
and  a  tenant  in  defendant's  premises  refused  to  vacate  without 
the  statutory  ninety  days'  notice,  and  defendant  refused  to 
perform  unless  the  purchaser  would  take  subject  to  the  lease; 
this  the  latter  refused  to  do,  and  the  transaction  was  not  con- 
summated. Held,  that  since  the  plaintiff  knew  of  the  existence 
of  the  lease,  he  had  not  perfected  a  contract  for  exchange  so  as 
to  be  entitled  to  the  commissions.  Mainhart  v.  Paerschke,  65 
N.  Y.  S.  494,  32  Misc.  97 ;  Low  v.  Woodbury,  95  N.  Y.  S.  336, 
107  App.  Div.  298.  See  Sec.  33. 

Sec.  177a.    Broker  entitled  to  commission  for  exchange  de- 
feated by  failure  to  pay  off  liens. 

Where  no  time  was  fixed,  a  party  to  a  contract  for  an  exchange 
of  lands  has  a  reasonable  time  to  satisfy  liens,  and  the  broker 
Who  effected  an  exchange  can  not  be  denied  commission  because 
one  party  did  not  immediately  free  his  property  from  all  liens. 
Carrington  v.  Smithers,  147  P.  225,  26  Cal.  App.  460. 

Sec.  178.    Interfering-  broker  not  entitled  to  commissions  for 
effecting  an  exchange. 

A  letter  containing  an  offer  for  certain  real  estate  was  sent 
to  the  supposed  owner  thereof,  who  turned  it  over  to  a  broker; 


EXCHANGES  OF  HEAL  ESTATE.  177 

the  latter  forwarded  it  to  the  real  owner,  with  a  letter  suggesting 
that  said  one  was  the  agent  of  the  one  making  the  offer.  Held, 
that  the  broker  was  entitled  to  no  commissions  on  an  exchange 
subsequently  effected  as  a  result  of  the  negotiations.  Hamilton  v. 
Gillander,  49  N.  Y.  S.  663,  26  App.  Div.  156;  Shapiro  v.  Shapiro, 
103  N.  Y.  S.  305,  117  App.  Div.  817;  Swaney  Land  Co.  v.  Brad- 
ford, 165  N.  W.  362,  —  Iowa  Sup.  — .  See  Sec.  70. 

Sec.  179.    Exchange  defeated  by  failure  to  furnish  abstract  of 
title,  broker  not  entitled  to  commissions. 

Plaintiff,  employed  by  defendant  to  find  a  purchaser  for  a 
stock  of  goods,  found  a  person  who  was  willing  to  buy,  if  real 
estate  which  he  had  was  accepted  in  payment ;  defendant  made  a 
written  proposition  in  which  he  agreed  to  accept  such  real  estate 
in  part  payment,  provided  the  purchaser,  among  other  things, 
furnished  an  abstract  showing  title  in  him;  the  purchaser  ac- 
cepted the  offer,  but  failed  to  furnish  an  abstract.  Held,  that 
the  acceptance  was  not  such  as  to  entitle  the  plaintiff  to  his 
commissions  as  having  found  a  purchaser  able  and  willing  to 
buy  on  the  terms  proposed.  Marple  v.  Ives,  111  Iowa  602,  82 
N.  W.  1017.  See  also  Sees.  556,  274. 

Sec.  180.    Purchaser  able  to  give  title  to  property  offered  in 
exchange,  broker  entitled  to  commissions. 

A  broker  procuring  a  purchaser  able  to  give  title  to  the  prop- 
erty agreed  on  to  be  conveyed  by  him  as  part  of  the  trade,  on  the 
day  fixed  to  carry  out  the  trade,  is  entitled  to  his  commissions, 
though,  at  the  time  the  trade  was  arranged,  the  purchaser  did  not 
have  title  thereto.  Ravenscroft  v.  Chesmore  (Iowa  Sup.  '06 ), 
108  N.  W.  465.  See  also  Sees.  87,  154. 

Sec.   180a.     Broker  not  entitled  to  commission  for  an  ex- 
change where  party  did  not  have  title  to  land. 

Broker  not  entitled  to  commission  for  an  exchange  which 
failed  because  one  of  the  parties  did  not  have  title  to  the  land. 
Snyder  v.  Fidler,  112  N.  W.  546,  135  Iowa,  304. 


178  AMEKICAN   LAW   HEAL   ESTATE   AGENCY. 

Sec.  181.    Mistake  in  description  defeated  broker's  right  to 

commissions  for  effecting  an  exchange. 
Defendant  agreed  to  pay  plaintiff  a  commission  for  finding  a 
purchaser  with  whom  he  could  exchange  his  stock  of  goods  for 
land,  and  the  plaintiff  secured  a  contract  with  P.  to  exchange 
a  certain  tract  of  land  for  defendant's  stock  of  goods,  but  by  a 
mistake  of  P.,  the  land  described  in  the  contract  was  not  owned 
by  him;  it  did  not  appear  that  defendant  was  aware  of  the 
mistake.  Held,  that  plaintiff  was  not  entitled  to  a  commission. 
Snyder  v.  Fidler,  135  Iowa  304,  112  N.  W.  546 ;  Hensel  v.  Witt, 
134  Wis.  55,  113  N.  W.  1093.  See  also  Sees.  59,  476. 

Sec.  182.    Failure  of  conditional  agreement  in  contract  of  ex- 
change defeated  broker's  right  to  commissions. 

Where  a  real  estate  agent  and  the  parties  to  the  proposed 
exchange  of  properties  understood  that  the  agreement  for  ex- 
change, and  any  right  to  commissions,  was  dependent  on 
defendants  acquiring  outstanding  interests  in  the  property  they 
proposed  to  exchange,  and  that  their  acceptance  of  the  terms 
of  the  exchange  offered  by  the  other  parties  was,  in  fact,  con- 
ditional on  their  acquiring  such  interests,  commissions  can  not 
be  recovered  of  defendants,  their  failure  to  acquire  such  inter- 
ests not  having  been  by  their  procurement  or  connivance. 
Rieger  v.  Merrill,  125  Mo.  App.  541,  102  S.  W.  1072.  See  also 
Sees.  45,  108. 

Sec.  183.    Misrepresentation  by  agent  to  effect  exchange  de- 
feated right  to  commissions. 

Where  a  real  estate  agent,  acting  for  both  parties  with  their 
knowledge  and  consent  in  an  exchange  of  lands,  misrepresented 
to  one  of  the  parties  that  the  other  was  the  owner  of  a  certain 
farm  and  rated  it  at  a  certain  value,  when  he  knew  that  the 
real  owner  was  offering  to  sell  for  much  less,  such  party  was 
entitled  to  discharge  him  as  agent,  and  he  was  not  entitled  to 
any  commissions  for  an  exchange  of  properties  thereafter  made 
between  the  parties.  Featherston  v.  Trone,  82  Ark.  381,  102 
S.  W.  196;  McDonald  v.  Kimmell,  70  Pa.  Super.  Ct.  — .  See 
also  Sees.  313,  435,  451.  Compare  Sec.  165. 


EXCHANGES  OP  REAL  ESTATE.  179 

Sec.  183a.  Broker  not  entitled  to  commission  for  exchange 
which  failed,  property  being  homestead,  and  wife  not 
joining  in  the  contract. 

Broker  not  entitled  to  a  commission  for  exchange  which  failed, 
one  of  the  properties  being  a  homestead  and  wife  not  joining  in 
the  contract  of  exchange.  Laubscher  v.  Mixell,  153  N.  W.  335, 
171  Iowa,  88. 

Sec.  184.    In  action  for  commissions  for  an  exchange,  receipt 

in  another  transaction  inadmissible. 

In  an  action  by  real  estate  brokers  for  a  commission  for 
negotiating  an  exchange  of  defendant's  property,  which  defend- 
ant refused  to  carry  out,  a  receipt  given  by  one  of  the  plaintiffs 
to  defendant  for  a  commission  paid  him  by  defendant  for 
effecting  a  subsequent  exchange  of  the  same  property  with 
another  purchaser  is  inadmissible,  because  foreign  to  the  issues. 
Goodman  v.  Linetzky,  107  N.  Y.  S.  50. 

Sec.  185.  Exchange  for  certain  amount  to  boot,  broker  entitled 
to  commissions  upon  whole  value  of  property. 

Where  a  broker  is  entitled  to  commissions  on  a  sale  of  real 
estate,  and  the  land  is  disposed  of  by  an  exchange  for  a  cer- 
tain amount  to  boot,  his  commission  is  to  be  estimated  upon 
the  whole  value  of  the  property.  Carle  v.  Parent,  Montreal 
|(Can.)  L.  Rep.,  5  Q.  B.  451.  See  also  Sec.  149. 

Sec.  186.  Broker  entitled  to  commissions  on  effecting  bind- 
ing contract  for  an  exchange. 

Where  defendant,  through  an  offer  by  plaintiff,  after  examina- 
tion of  a  parcel  of  land,  executed  a  contract  with  its  owner  to 
exchange  his  realty  for  such  parcel,  but  afterwards  refused  to 
execute  a  deed,  plaintiff  is  entitled  to  his  agreed  commissions,  in 
the  absence  of  evidence  that  it  was  dependent  upon  the  execution 
of  the  executory  contract.  Brown  v.  Grossman,  65  N.  Y.  S. 
1126,  53  App.  Div.  640 ;  Stanley  v.  Whitlow,  168  S.  W.  840,  181 
Mo.  App.  461;  Slocum  v.  Ostrander,  126  N".  Y.  Sup.  219,  141 
App.  Div.  380,  judg.  aff.  98  N.  E.  1115,  205  N.  Y.  617;  Allgood 
v.  FaJirney,  146  N.  W.  42,  164  Iowa,  540;  'Wheeler  v.  Waymire, 


180  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

164  P.  186,  100  Kan.  383 ;  Neuer  v.  Joffe,  165  N.  Y.  Sup.  113, 
179  App.  Div.  37;  Britton  v.  Eagan,  196  S.  W.  972,  —  Tex.  Civ. 
App.  — ;  Hill  v.  Huber,  202  S.  W.  785,  —  Tex.  Civ.  App.  — ; 
McCartney  v.  Shares,  188  P.  663,  —  Okl.  Sup.  — .  See  Sees. 
150,  188. 

Sec.  186a.    Broker  fairly  securing  agreement  for  exchange 
entitled  to  commission. 

Broker  securing  agreement  for  an  exchange,  as  there  is  no 
showing  that  it  was  obtained  by  duress,  menace,  etc.,  entitled  to 
recover  his  commission.  Lunden  v.  Ottis,  128  P.  335,  164  Cal. 
183. 

Sec.  187.    Broker  barred  commissions  on  failure  of  exchange 
on  account  of  encroachments. 

Where  defendant  entered  into  a  contract  for  the  exchange  of 
real  estate,  provided  that  if  the  other  party  to  the  agreement 
rejected  the  title  on  the  ground  of  bay-window  and  stoop-ledge 
encroachments,  the  deposit  paid  by  each  party  should  be  re- 
turned in  full  of  all  claims,  of  which  provision  plaintiff,  a 
broker  employed  by  defendant,  knew,  plaintiff  was  not  enti- 
tled to  the  commission  on  the  rejection  of  defendant's  title 
because  of  such  encroachments.  Hough  v.  Baldwin,  99  N.  Y.  S. 
545,  50  Misc.  546. 

Sec.  188.    Broker  entitled  to  commissions  on  producing  one 

willing  to  exchange. 

Where  a  broker  was  employed  to  procure  a  purchaser  or  one 
willing  to  exchange  property,  his  contract  was  performed  when 
he  procured  a  purchaser  able  and  willing  to  purchase  or  ex- 
change, and  the  fact  that  he  made  any  material  misrepresenta- 
tions as  to  the  property  exchanged  for  his  clients,  was  no  bar 
to  his  recovery  of  his  commissions.  Nichols  v.  Whit  acre,  112 
Mo.  App.  692,  87  S.  W.  594.  See  also  Sees.  150,  186.  Shepherd- 
Teague  Co.  v.  Herman  (Cal.  App.  '10),  107  P.  622;  Cotton  v. 
Meadows,  147  S.  W.  221,  163  Mo.  App.  723;  Bigham  v.  Linville, 
156  S.  W.  713,  170  Mo.  App.  354;  Weinemeyer  v.  Woodrum,  154 
S.  W.  894,  168  Mo.  App.  716;  Brilliant  v.  Samelas,  108  N.  E. 
1047,  221  Mass.  302. 


EXCHANGES   OF   REAL   ESTATE.  181 

Sec.  189.    Proof  necessary  for  broker  to  recover  commissions 
on  failure  to  consummate  exchange. 

An  owner  employed  a  broker  to  procure  a  purchaser  for  his 
land  on  specified  terms;  the  broker  produced  a  third  person 
who  offered  to  buy  and  to  convey  certain  lands  in  exchange 
therefor,  and  to  pay  a  specified  sum  in  addition.  Held,  that 
the  broker,  in  order  to  recover  his  commissions,  may  prove  that 
the  owner  and  the  third  person  reached  an  agreement,  and  that 
the  third  person  had  title  to,  or  was  authorized  to  convey  the  land 
offered  in  exchange,  and  that  he  was  financially  able  to  respond 
in  damages  on  the  failure  of  title.  Blackledge  v.  Davis,  129 
Iowa,  591,  105  K  W.  1000;  Shipman  v.  N.  Y.  R.  E.  Asso.,  135 
K  Y.  Sup.  571.  Compare  Herscher  v.  Wills,  103  111.  App.  418. 

Sec.  190.    Execution  of  contract  to  convey  prima  facie  evi- 
dence of  title  thereto. 

Proof  that  a  party  has  executed  a  formal  contract  to  convey 
certain  property  in  exchange  for  other  property  is  sufficient 
prima  facie  evidence  of  his  title  thereto,  in  an  action  by  a 
broker  for  commissions  on  effecting  an  exchange.  Muscowitz  v. 
Hornberger,  46  N.  Y.  S.  462,  20  Misc.  558.  Compare  Herscher 
v.  Wills,  103  111.  App.  418. 

Sec.  191.    Broker  earns  commissions  when  both  parties  agree 
on  the  terms  of  an  exchange. 

A  broker  employed  to  secure  an  exchange  of  land  for  a  stock 
of  merchandise  earns  his  commissions,  when  the  owner  of  the 
stock  and  the  owner  of  the  land  procured  by  the  broker  agree 
on  the  terms  of  exchange,  the  owner  of  the  stock  having  the 
right  to  reject  the  proposition  for  exchange,  if  acting  in  good 
faith.  Davidson  v.  Wills  (Tex.  Civ.  App.  '06),  96  S.  W.  634; 
Perry  v.  Edelen,  164  S.  W.  645,  181  Mo.  App.  498 ;  Scarborough 
v.  Darnell  &  Stagner,  171  S.  W.  1049,  —  Tex.  Civ.  App.  — ; 
Micek  v.  WamJca,  161  N".  W.  467,  165  Wis.  97. 

Where  broker  employed  to  bring  about  an  exchange  of  prop- 
erty brought  the  parties  together,  and  they  agreed  on  an  ex- 
change, assent  of  broker  to  exchange  on  understanding  that  he 
would  receive  no  commission;  held,  not  to  prevent  recovery  of 
commissions,  as  he  could  not  be  deprived  thereof,  even  with  his 


182  AMEKICAN   LAW   EEAL   ESTATE   AGENCY. 

consent,  without  consideration.     Connor  v.  Munsees,  145  N".  Y. 
Sup.  891. 

Where  a  contract  for  exchange  of  property  contained  an  agree- 
ment to  pay  broker's  commission,  as  previously  agreed  upon,  was 
negotiated  and  prepared  by  the  brokers,  who  had  it  signed  by 
one  party,  and  sent  by  the  brokers  to  the  other  party,  with  a 
letter  stating  that  if  the  offer  was  accepted  he  would  be  required 
to  pay  a  stated  commission;  the  contract  speaks  from  the  time 
it  was  signed  by  him,  and  not  from  its  date,  and,  in  the  absence 
of  any  other  agreement  for  commissions,  his  acceptance  of  that 
proposed  is  presumed.  Davidson  v.  Prague,  263  F.  876. 

Sec.   191a.     Broker  may  recover  commission  for   exchange 
though  contract  not  in  writing. 

Sec.  640d  of  the  Code  (Laws  1901,  p.  302,  c.  128),  making 
the  offering  of  real  property  for  sale,  without  written  authority 
from  the  agent  or  his  attorney  in  fact,  a  misdemeanor,  being  un- 
constitutional, does  not  preclude  a  broker  having  no  written  au- 
thority from  either  party  to  the  contract  for  an  exchange  of 
property  from  recovering  commissions  for  procuring  the  execu- 
tion of  the  contract.  Trick  v.  McKenna,  101  N.  Y.  Sup.  317,  115 
App.  Div.  701. 

Sec.  192.    Broker's  right  to  commissions  not  affected  by  fail- 
ure of  one  party  to  perform  contract  of  exchange. 

A  broker's  right  to  commissions  for  procuring  the  execution  of 
a  contract  for  an  exchange  of  property  being  absolute,  when  the 
written  contract  of  exchange  was  entered  into,  was  not  affected 
by  the  non-completion  of  the  contract  caused  by  the  inability  or 
unwillingness  of  one  of  the  parties  to  perform.  Tieck  v.  Mc- 
Kenno,  101  N.  Y.  S.  317,  115  App.  Div.  701;  Goodrich  v.  Tur- 
ney,  186  P.  806,  —  Cal.  App.  — .  See  also  Sees.  458,  460,  464. 

Sec.  192a.    When  party  withdrew  offer  to  exchange,  broker 
not  entitled  to  commission. 

If  one  party  withdrew  tentative  offer  for  exchange  of  lands, 
broker  could  recover  no  commissions  for  procuring  the  contract. 
Britton  v.  Eagan,  196  S.  W.  972,  —  Tex.  Civ.  App.  — . 


EXCHANGES  OF  HEAL  ESTATE.  183 

Sec.  193.    Failure  to  secure  transfers  by  parties  to  exchange 
defeated  broker's  right  to  commissions. 

An  owner  employed  a  broker  to  procure  a  purchaser  for 
described  real  estate  for  a  specified  sum  at  a  stated  commis- 
sion; the  broker  procured  a  third  person  to  make  an  offer 
which  the  owner  accepted,  and  the  two  entered  into  a  contract 
for  an  exchange  of  property;  the  broker  testified  that  the 
owner  stated  that  if  he  could  get  a  third  person  to  agree  to 
give  a  specified  number  of  lots  and  a  mortgage  back  of  a 
specified  sum  the  owner  would  pay  a  specified  sum  for  com- 
missions; the  agreement  for  the  exchange  was  not  carried  out 
because  of  a  defect  in  the  title  of  the  third  person,  which  the 
broker  attempted  to  cure.  Held,  that  the  broker  was  not  enti- 
tled to  commissions,  none  being  earned  unless  a  transfer  was 
made.  Keating  v.  Haley,  147  Mich.  279,  110  N.  W.  943;  13 
D.  L.  K  1035;  Osborn  v.  Addington,  138  P.  603,  91  Kan.  586; 
Clieafham  &  Haney  v.  Dansby,  159  S.  W.  385,  —  Tex.  Civ.  App. 
— ;  Stanford  v.  Willie,  Carpenter  &  McClelland,  178  S.  W.  991, 
—  Tex.  Civ.  App.  — ;  Britton  v.  Eagan,  196  S.  W.  972,  —  Tex. 
Civ.  App.  — ;  Applely  v.  Dysinger,  163  N.  W.  739,  137  Minn. 
382 ;  HougUon  v.  Kucliurench,  189  P.  457,  —  Cal.  App.  — .  See 
also  Sees.  119,  224,  272,-  449. 

Sec.  194.    Value  of  land  exchanged  shown  to  enable  jury  to 
determine  whether  commission  earned  and  how  much. 

Where,  in  an  action  by  a  broker  for  commissions,  the  evidence 
showed  that  he  was  to  receive  $2  per  acre  from  the  owner,  rf 
he  received  for  his  land  $16  per  acre,  or  the  amount  per  acre 
in  excess  of  $14,  in  case  the  owner  did  not  receive  $16;  that 
the  owner  exchanged  his  land  for  other  land,  and  that  the  con- 
tract for  the  exchange  fixed  the  price  of  the  owner's  land  at 
$16  per  acre  and  the  land  received  at  $45  per  acre,  the  owner 
could  show  the  value  of  the  land  received  in  exchange  to  enable 
the  jury  to  determine  whether  or  not  he  had  received  more 
than  $14  per  acre  for  his  land.  Steers  v.  Gingery  (S.  D.  '07), 
110  N.  W.  774.  See  also  Sec.  1076. 


184  AMEKICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  195.    Broker  not  entitled  to  commissions  for  effecting 

an  exchange  where  party  does  not  show  good  faith. 
A  contract  of  exchange  negotiated  by  a  broker  incompletely 
executed  by  the  broker's  principals,  does  not  show  willingness 
to  perform  by  the  alleged  purchaser,  where  the  form  of  the 
contract  and  the  whole  of  the  signatures  thereto  show  that  some 
of  the  conditions  upon  which  the  purchaser  insisted  could  not 
be  complied  with.  Schulte  v.  Meehan,  133  111.  App.  491 ;  Mann 
v.  Griswold,  112  N.  Y.  S.  271,  59  Misc.  239. 

Sec.  195a.     Broker  not  entitled  to  commission  for  exchange 
where  liquidated  damages  fixed  for  breach. 

Provision  in  a  contract  for  exchange  of  lands  for  liquidated 
damages  in  case  of  non-performance  let  in  an  attorney's  form  of 
agreement  into  the  option  so  as  to  defeat  a  broker's  right  to  com- 
missions for  bringing  about  the  exchange.  Anderson  v.  Jackson, 
168  S.  W.  54,  —  Tex.  Civ.  App.  — . 

Sec.  195b.    Broker  effecting  exchange  may  recover  commis- 
sions from  both  parties  thereto. 

A  broker  employed  to  bring  about  an  exchange  may  recover 
commissions  from  both  sides.  Conner  v.  Munsees,  145  N.  Y. 
Sup.  891.  A  written  agreement  for  the  exchange  of  real  property 
can  not  be  avoided  by  showing  that  the  agent  who  brought  about 
the  contract  was  the  agent  of  both  parties,  when  each  party 
knew  at  the  time  that  the  agent  was  also  acting  for  the  other. 
White  v.  Immenschuh,  187  P.  667,  —  Kan.  Sup.  — . 

Sec.  195c.     Broker  not  entitled  to  commission  for  exchange 
not  completed  because  of  flaw  in  the  title. 

A  broker  who  brought  the  parties  together,  and,  upon  a  flaw 
being  found  in  the  title  of  lands  of  one  party  to  the  exchange, 
did  nothing  more  than  to  await  the  outcome  of  supposed  efforts 
to  cure  the  title,  is  not  entitled  to  compensation  where  one  of  the 
parties  sold  his  land,  and  the  parties  got  together,  and  through 
their  own  efforts  came  to  a  bargain  upon  other  and  different 
terms  from  those  that  obtained  during  the  course  of  the  broker's 
period  of  service,  even  had  there  been  a  collusive  understanding 
between  the  parties  to  hinder  the  broker  in  the  event  of  his  mak- 
ing a  claim  for  brokerage.  Tuoti  v.  Benenson,  181  N.  Y.  Sup. 
755. 


CHAPTEE  IV. 
LEASES. 

Sec.  196.    Value  of  services  of  broker  in  negotiating  leases. 

The  value  of  the  services  of  a  real  estate  broker  for  negoti- 
ating a  lease  can  not  be  measured  by  the  value  of  the  fee, 
regardless  of  the  terms  of  the  lease.  Daube  v.  Nessler,  50  111. 
App.  166;  Grosscup  v.  Downey,  105  Md.  273,  65  A.  930.  He 
is  entitled,  in  the  absence  of  a  special  contract  therefor,  to  a 
reasonable  compensation,  and  this  is  usually  based  on  the  amount 
of  rental.  Schultz  v.  Goldman,  1  Ari.  279,  64  P.  425 ;  Hull  v. 
Cardwell,  2  N.  Y.  City  Ct.  76. 

Sec.  197.    Lessor  can  not  arbitrarily  refuse  to  accept  lease  and 

defeat  broker's  right  to  commissions. 

Under  an  agreement  to  pay  commissions  for  negotiating  a 
"satisfactory  lease,"  the  lessor  can  not  arbitrarily  refuse  to 
accept  a  lease  negotiated  and  thereby  defeat  a  claim  for  com- 
missions. Mullaly  v.  Greenwood,  127  Mo.  138,  29  S.  W.  1001; 
Casaner  v.  Johnson,  122  N.  E.  444,  —  Mass.  Sup.  — .  See  also 
Sees.  374,  454. 

Sec.  198.    Broker  to  sell,  securing  one  willing  to  lease,  not 
entitled  to  commissions. 

An  agreement  to  pay  a  commission  to  a  real  estate  agent  if 
he  should  find  a  purchaser  for  certain  real  estate  does  not  en- 
title him  to  recover  when  he  only  finds  a  person  who  is  willing 
to  take  a  lease  for  ten  years  with  the  privilege  of  purchase,  the 
vendors  being  executors,  and  not  authorized  by  the  will  to  lease 
the  property.  Wooley  v.  Schwall,  5  Ohio  Cir.  Ct.  76,  3  Ohio  Cir. 
Dec.  39. 

Sec.  198a.    Broker  to  secure  lessee,  whose  customer  bought, 
not  entitled  to  commission. 

Where  a  broker  procures  a  prospective  lessee  for  property  and 
introduces  him  to  the  owner,  and  in  the  subsequent  negotiations 

185 


186  AMEKICAN  LAW  REAL  ESTATE  AGENCY. 

between  such  prospective  lessee  and  the  owner  a  sale  of  the  prop- 
erty is  agreed  on  and  carried  out,  the  broker  can  not  claim  com- 
missions for  the  sale.  Evartson  v.  Warrach,  132  S.  W.  514,  — 
Tex.  Civ.  App.  — . 

Sec.  199.    Option  at  specified  rental  not  exercised  by  taking 
lease  at  a  lower  rental. 

An  option  to  take  a  lease  at  a  specified  rental  is  not  exercised 
by  securing  a  lease  at  a  lower  rental.  Curtis  v.  Nixon,  24  L.  T. 
R.  (Eng.),  N".  S.  706.  See  also  Sec.  101. 

Sec.  200.    Lease,  with  privilege  of  purchase,  held  equivalent 

to  a  sale. 

A  contract  which  ran  for  one  year,  provided  that  if  plaintiff, 
a  real  estate  broker,  effected  a  sale  of  defendant's  property, 
he  was  to  receive  a  certain  commission,  and  in  case  a  sale  was 
made  without  his  aid,  or  the  property  was  withdrawn  from 
sale,  one-half  such  commission.  Held,  that  a  lease  by  defendant 
for  five  years,  with  the  exclusive  privilege  to  the  lessee  of  pur- 
chasing at  a  fixed  price,  at  any  time  before  the  expiration  of 
the  lease,  was  a  sale  within  the  meaning  of  the  contract  entitling 
plaintiff  to  one-half  the  commissions.  RucJcer  v.  Hall,  105  Cal. 
425,  38  P.  962. 

Sec.  201.    Charge  properly  refused  which  implied  no  leases 
were  made  without  a  broker. 

In  an  action  to  recover  brokerage  for  effecting  a  lease  of  real 
property,  plaintiff  did  not  allege  that  he  had  been  employed  by 
defendant,  but  alleged  that  defendant  accepted  plaintiff's  serv- 
ices, with  knowledge  that  they  had  been  rendered.  Held,  that 
it  was  proper  to  refuse  plaintiff's  request  to  charge  that,  while 
the  owner  was  entitled  to  know  that  the  broker  had  been  instru- 
mental in  sending  the  tenant,  yet,  when  he  knows  that  the 
tenant  has  received  information  of  his  intention  to  let,'  and  his 
price,  the  owner  is  bound  to  inquire  where  the  tenant  got  the 
information,  as  such  instruction  pre-supposes  that  leases  are 
never  made  without  the  intervention  of  brokers,  and  that  no 
information  could  be  received  as  to  what  property  was  to  be  let 


LEASES.  187 

except  through  brokers.     Tinkham  v.  Knox,  21  N".  Y.   S.   954, 
2  Misc.  579. 

Sec.  202.    Power  to  sell  does  not  include  power  to  lease. 

A  power  to  sell  land  does  not  include  the  power  to  lease  or 
exchange  it.  Trudo  v.  Anderson,  10  Mich.  358;  Lampkin  v. 
Wilson,  5  Heisk.  (Tenn.)  555;  Eeese  v.  Medlock,  27  Texas  120. 

Sec.  203.    Agent  of  lessee  secretly  securing  new  term  to  him- 
self holds  as  trustee. 

A  confidential  agent  of  the  lessee,  before  the  lease  expired, 
secretly  procured  a  lease  for  a  new  term  to  himself,  at  a  larger 
rent,  denying  to  the  principal  that  he  was  competing  for  the 
lease.  Held,  that  the  agent  must  hold  the  lease  as  trustee  for 
the  principal.  Davis  v.  Hamlin,  108  111.  39;  Gower  v.  Andrew, 
59  Cal.  119. 

Sec.  203a.    Broker  entitled  to  commission  for  lease  when  that 
first  proposed  to  which  he  was  a  party  was  not  made. 

That  broker,  with  third  person,  proposed  to  enter  into  a  lease 
of  his  client's  property,  but  did  not  complete  the  transaction, 
will  not  prohibit  recovery  of  commission  for  negotiating  later  a 
lease  with  same  party  and  other  persons.  Stineman  v.  Gotischalk, 
167  P.  550,  —  Cal.  App.  — . 

Sec.  204.    Broker  entitled  to  commissions  for  finding  a  respon- 
sible lessee  on  prescribed  terms. 

To  entitle  a  broker  to  commissions  for  finding  a  lessee,  he 
must  procure  a  customer  able,  ready  and  willing  to  take  the 
premises  on  the  terms  proposed  by  the  principal.  Clark  v.  Day- 
ton, 87  Minn.  454,  92  K  W.  327;  Floore  v.  J.  T.  "Rurgher  &  Co., 
143  S.  W.  939,  judg.  aff.  J.  T.  Burgher  '&  Co.  v.  Floore,  174  S. 
W.  819,  —  Tex.  Civ.  App.  — ;  Fox  v.  Cammeyer,  Inc.,  156  N.  Y. 
Sup.  1046,  93  Misc.  Bep.  180;  Tucker,  Lynch  &  Caldwell  v. 
Hawley,  138  P.  358,  23  Cal.  App.  460;  Wheeler  v.  Bornsfein, 
101  K  E.  1086,  214  Mass.  595 ;  BdlUntine  v.  Mercer,  109  S.  W. 
L.  1037,  130  Mo.  App.  605:  Cohen  v.  Ames,  91  N".  E.  212,  205 
Mass.  186;  Eitchey  v.  Murphy,  168  K  Y.  Sup.  830,  181  App. 


188  AMERICAN   LAW  EEAL   ESTATE   AGENCY. 

Div.  429;  Osborn  v.  Henry  Cowell  Lime  &  Cement  Co.,  173  P. 
492,  —  Cal.  App.  — ;  Hochlerg  v.  Hangen,  171  1ST.  Y.  Sup.  4; 
Davis  v.  Geiger,  212  S.  W.  384,  —  Mo.  App.  — ;  Campbell  v. 
Slaon,  101  S.  E.  529,  —  S.  C.  Sup.  — ;  Nadrema  Co.  v.  Cos- 
sidy,  127  N.  E.  262  (New  York). 

Broker  entitled  to  commission  on  making  a  binding  contract. 
Johnson  v.  Holland,  97  N.  E.  755,  211  Mass.  363.  Broker  to  se- 
cure a  tenant  not  entitled  to  commissions  unless  proposed  tenant 
was  ready,  able  and  willing  to  carry  out  the  terms  of  the  offer. 
Morgan  v.  Zanger,  153  N.  W.  1079,  188  Mich.  212. 

Sec.  204a.    To  earn  commissions  for  procuring  tenant  broker 
must  negotiate  a  lease  which  the  principal  can  perform. 

To  entitle  a  broker  employed  to  procure  a  tenant  for  real  es- 
tate to  commissions,  he  must  negotiate  an  agreement  for  a  lease 
which  his  principal  can  perform.  Mann  v.  Griswold,  112  N.  Y. 
S.  271,  59  Misc.  239;  MarTcowitz  v.  Arrow  Const.  Co.,  169  N.  Y. 
Sup.  159,  102  Misc.  Rep.  532. 

Broker  not  entitled  to  commission  where  the  terms  of  the  pro- 
posed lease  were  never  agreed  upon,  because  the  owner  was  dis- 
satisfied with  the  financial  responsibility  of  the  proposed  lessee. 
Kanpolsky  v.  Heidenreisch,  147  N".  Y.  Sup.  353. 

Where  a  broker  brought  the  owner  of  a  warehouse  under  con- 
struction and  the  agent  of  a  proposed  tenant  together,  with  a  dis- 
tinct understanding,  in  writing,  with  the  owner,  that  should  the 
agent,  or  any  concern  represented  by  him,  lease,  the  broker  was 
to  get  $1,500,  the  fact  that  the  owner, 'because  of  lack  of  funds, 
organized  a  corporation  to  complete  the  construction,  did  not  af- 
fect the  right  of  the  broker  to  recover.  Tucker,  Lynch  &  Coldwell 
v.  Hawley,  138  P.  358,  23  Cal.  App.  460. 

Sec.  205.    Power  to  do  all  things  concerning  my  real  estate 

confers  authority  to  lease. 

A  power  authorizing  an  attorney  "to  superintend  my  real 
and  personal  estate,  to  make  contracts,  and  in  general  to  do 
all  things  that  concern  my  interest  in  any  way,  real  and  per- 
sonal, whatsoever,"  etc.,  empowers  the  attorney  to  convey  real 
estate,  and  therefore  to  make  a  lease  with  the  privilege  of  pur- 
chase. De  Rutte  v.  Muldrew,  16  Cal.  505. 


LEASES.  189 

Sec.  206.    Waiver  of  tenant's  privilege  of  renewal  of  lease, 
secured  by  agent,  binds  principal. 

Where  a  landlord  accepted  the  waiver  of  the  tenant's  priv- 
ilege of  renewal  procured  by  his  agent  from  the  tenant,  and 
acted  upon  the  same,  he  was  estopped  to  deny  the  agent's  au- 
thority in  the  premises.  Madison  Ave.  v.  Osgood,  18  N.  Y. 
S.  126. 

Sec.  206a.    Broker  barred  commissions  where  lease  was  not 
renewed. 

A  contract  to  pay  a  broker  a  commission  upon  the  rent  under 
the  renewal  of  a  lease,  if  the  tenant  exercised  his  option  to  renew, 
does  not  entitle  the  broker  to  the  commission  where  the  tenant 
failed  to  exercise  his  option  within  the  time  required,  but  later 
took  a  new  lease  with  different  provisions.  Allwin  Realty  Co.  v. 
Barth,  146  N.  Y.  Sup.  960,  161  App.  Div.  568. 

Sec.  207.    Broker  employed  to  collect  rents  not  entitled  to 
commission  for  securing  a  lease. 

A  real  estate  agent  employed  to  collect  the  rents  on  a  lease 
taken  in  his  name  for  the  owners,  but  not  negotiated  by  him, 
is  not  entitled  to  a  commission  for  the  whole  life  of  the  lease, 
but  only  to  commissions  for  collecting  the  rent  while  employed 
for  that  purpose  by  the  owners.  Lucas  v.  Jackson,  140  Pa.  St. 
122,  21  A.  310.  See  also  Sec.  212.  Compare  Sec.  456. 

Sec.  207a.    Broker  entitled  to  commission  for  lease,  although 
tenant  defaulted  in  payment  of  rent. 

Where  defendant  agreed  to  pay  a  broker  $500  if  he  sold  a 
lease  for  $1,500,  and  the  broker  produced  a  purchaser  who  paid 
$1,500  for  an  assignment,  but  was  unable  to  comply  with  the 
further  agreement,  to  make  a  deposit  to  secure  the  rent,  so  that 
the  lease  was  not  transferred,  the  broker  was  entitled  to  com- 
missions. Swank  v.  Roberts,  124  P.  104,  24  Cal.  App.  730. 

Sec.  208.    Broker  for  tenant  has  no  claim  on  lessor  for  com- 
missions. 

A  real  estate  broker  who,  at  the  inception  of  negotiations  for 
a  lease,  and  during  their  continuance,  represented  the  tenant 


190 


AMERICAN   LAW   REAL   ESTATE   AGENCY. 


and  not  the  lessor,  has  no  claim  on  the  latter  for  commissions. 
Blake  v.  Stump,  73  Md.  60,  20  A.  788,  10  L.  R.  A.  103 ;  Winter 
v.  Gary,  127  Mo.  App.  601,  106  S.  W.  539 ;  Callaway  v.  Equit. 
Trust  Co.  67  N.  J.  L.  44,  50  A.  900 ;  Carman  v.  Beach,  63  N.  Y. 
97 ;  Haynes  v.  Fraser,  78  N.  Y.  S.  794,  76  App.  Div.  627 ;  Curry 
v.  Terry,  69  N.  Y.  S.  932,  34  Misc.  797;  Carroll  v.  O'Shea,  18 
N.  Y.  S.  146,  42  N.  Y.  St.  R.  671;  Richtberg  v.  Carlton,  108 
N.  Y.  S.  1067,  58  Misc.  186;  Wireman's  Est.,  1  Pa.  Dist.  759, 
4  Weekly  Notes  Gas.  334.  See  also  Sec.  25. 

Sec.  209.    Broker  to  procure  a  lessee  not  entitled  to  com- 
mission for  procuring  a  mere  option. 

A  real  estate  agent  employed  to  lease  property  procured  a 
proposed  lessee  to  sign  a  paper  reciting  the  payment  of  money 
on  account  of  a  deposit  to  be  paid  on  the  signing  of  a  proposed 
lease,  but  such  writing  did  not  contain  any  promise  to  take  a 
lease,  nor  were  any  terms  specified.  Held,  that  there  was  no 
lease,  nor  an  agreement  for  a  lease,  and  therefore  the  agent 
was  not  entitled  to  commissions.  Fusco  v.  Bullowa,  40  N.  Y.  S. 
676,  17  Misc.  573,  75  N.  Y.  St.  80 ;  Benedict  v.  Pincus,  95  N.  Y. 
S.  1042,  109  App.  Div.  20;  Law  &  Bradford  v.  Schmidt,  80 
0.  St.  108,  88  N.  E.  319;  Rice  v.  Neuman,  115  N.  Y.  S.  83.  See 
also  Sec.  603. 

Sec.  210.    In  action  by  a  broker  for  commissions,  owner  can 
show  previous  lease  to  another. 

Where,  in  an  action  by  a  broker  for  commissions  alleged  to 
have  been  earned  in  procuring  a  tenant  for  defendant's  prop- 
erty, there  was  no  showing  as  to  the  character  or  business  of 
the  tenant  claimed  to  have  been  procured,  or  any  other  fact 
tending  to  show  that  he  was  a  satisfactory  tenant,  or  that  the 
lease  presented  to  defendant  for  signature  was  satisfactory  to 
him;  the  evidence  was  insufficient  to  show  performance  of  serv- 
ice by  plaintiff  for  which  defendant  was  liable,  or  to  show  that 
defendant  had  no  right  to  lease  the  premises  to  another  before 
the  lease  to  the  tenant  procured  by  plaintiff  was  presented  for 
signature.  Pescia  v.  Haims,  99  N.  Y.  S.  421,  50  Misc.  550. 


LEASES.  191 

Sec.  211.    Broker  bound  by  first  claim  for  commissions  for 

lease  and  can  not  increase  amount. 

Where  the  plaintiff  testified  that  he  told  defendant  what  the 
commission  would  be  for  a  lease  of  his  property,  but  was  silent 
as  to  what  the  commission  was,  and  the  defendant  said  that  the 
first  claim  plaintiff  made  was  $350,  plaintiff  can  not  recover  a 
larger  amount.  Duncan  v.  Borden,  13  Colo.  App.  481,  59  P. 
60.  See  also  Sec.  572. 

Sec.  212.    Broker  securing  lease  for  five  years,  and  sale  at 

second  year,  loses  commissions  for  three  years. 
Where  plaintiff  procured  a  tenant  for  defendant  for  a  term 
of  five  years,  the  lease  providing  that  if  the  property  was 
sold,  it  should  be  ended,  and  the  property  was  sold  at  the  end 
of  the  second  year,  plaintiff  was  not  entitled  to  commissions 
for  the  remaining  three  years  of  the  lease  as  on  an  implied 
contract,  although  the  sale  was  made  to  the  tenant's  wife,  and 
the  lease  gave  the  tenant  an  option  of  purchase.  Hears  v. 
Jones,  102  Me.  485,  67  A.  555.  See  also  Sees.  207,  456. 

Sec.  212a.    Lease  to  another  party  not  the  exercise  «f  renewal 
and  barred  broker's  right  to  commission. 

A  new  lease  executed  by  a  landlord  to  a  different  corporation; 
held,  not  the  exercise  of  an  option  to  renew  contained  in  a  former 
lease,  and  hence  plaintiff,  a  broker,  who  procured  the  latter  and 
was  entitled  to  a  portion  of  the  rent  thereunder,  could  not  re- 
cover any  portion  of  the  rent  accruing  under  the  new  lease,  in 
the  absence  of  any  claim  of  fraud.  Collum  v.  Eoos  Bros.,  142  P. 
858,  25  Cal.  App.  73. 

Sec.  213.    Where  lease  forbade  sub-letting,  oral  assent  oi  agent 

therefor  unavailing. 

Where  a  written  lease  forbids  sub-letting,  the  oral  assent  of 
the  landlord's  agent  to  such  sub-letting,  without  any  new  con- 
sideration with  the  landlord  is  unavailing.  Spota  v.  Hayes,  73 
N.  Y.  S.  959,  36  Misc.  532.  See  Sec.  409. 


192  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  214.    Lease  by  owner  after  broker's  contract  ended  de- 
prives him  of  commissions. 

Defendant,  the  owner  of  a  building,  informed  plaintiff,  a  real 
estate  broker,  that  he  desired  a  tenant,  and  stated  that  plaintiff 
should  bring  him  an  offer,  if  plaintiff  could  get  one;  plaintiff 
then  presented  the  question  to  a  third  person,  who  made  two 
written  offers  to  defendant,  both  of  which  were  declined,  after 
which  the  one  making  the  offer  told  plaintiff  that  the  matter  was 
ended;  but  several  weeks  after  such  offers  had  been  declined  the 
one  who  had  made  them  entered  into  negotiations  with  defendant, 
which  resulted  in  the  making  of  a  lease.  Held,  that  in  the  ab- 
sence of  any  evidence  of  bad  faith  to  defeat  the  rights  of  plaintiff 
to  a  commission,  the  facts  did  not  show  him  entitled  to  the  same. 
Arnold  v.  Woollacott,  4  Cal.  App.  500,  88  P.  504;  Chaff ee  v. 
Widman,  108  P.  995,  48  Colo.  34,  139  Am.  St.  Eep.  220 ;  Arnold 
v.  Woolacott,  88  P.  504,  4  Cal.  App.  500.  See  also,  Continuity 
Broken,  Sec.  447. 

Sec.   214a,     Where  tenant  and  owner  made  lease,  broker 
barred  commission. 

Broker  not  entitled  to  a  commission  for  a  lease  brought  about 
by  the  tenant  and  defendant.  Weiriberg  v.  Smith,  152  N.  Y. 
Supp.  1030. 

Sec.  215.    Broker  bringing  about  the  sale  of  a  lease  entitled 
to  commissions. 

One  employed  by  the  owner  of  a  lease  to  negotiate  a  sale 
thereof,  who  begins  negotiations  which  finally  result  in  a  sale 
as  authorized,  may  recover  compensation  accordingly.  North- 
rupp  v.  Dlggs,  128  Mo.  App.  217,  106  S.  W.  1123.  See  also 
Sec.  446. 

Sec.  216.    Broker  not  entitled  to  commissions  where  sale  of 

lease  frustrated  by  lessor's  refusal  to  assign. 

Where  plaintiffs  were  employed  to  sell  a  dairy  on  certain 

terms  and  obtained  a  purchaser  conditioned  that  the  vendor's 

lessors  would  consent  to  assign  their  lease,  and  the  landlords 

refused  so  to  do,  wherefore  the  sale  was  not  made,  they  were 


LEASES.  193 

not  entitled  to  their  commissions.  Ward  v.  Kennedy,  101  N.  Y. 
S.  524,  51  Misc.  422;  McCurry  v.  Hawkins,  103  S.  W.  600;  83 
Ark.  242;  Diamond  v.  Fay,  138  P.  933,  23  Cal.  App.  566.  See 
also  Sec.  45. 

Where  a  broker  is  authorized  to  negotiate  a  lease  of  property, 
on  specified  terms  to  be  improved,  the  improvements  not  defi- 
nitely settled  upon,  and  he  secured  an  offer  to  lease  the  premises 
upon  other  terms  than  those  specified  by  the  owners,  and  which 
referred  to  alterations  in  the  premises  to  be  executed,  in  accord- 
ance with  plans  mutually  agreed  upon,  the  offer  is  not  an  accept- 
ance of  the  owners'  offer.  Roberts  v.  New  &  Beaver  Street  Cor- 
poration, 122  N.  Y.  Sup.  989,  138  App.  Div.  47;  Prendergast  v. 
Cord  Meyer  Co.,  156  N.  Y.  Sup.  750,  judg.  aff.  161  N.  Y.  Sup. 
1142. 

Sec.  216a.    Broker  held  not  entitled  to  commissions  where 
plaintiff  refused  to  make  lease. 

A  real  estate  broker  said  to  one  of  defendant's  officers  that 
he  could  rent  defendant's  building  for  a  treater,  provided  de- 
fendant would  make  certain  changes.  Several  interviews  fol- 
lowed, and  plans  of  the  desired  changes  were  submitted  by 
architects.  The  rent  was  practically  agreed  upon,  and  defendant 
also  agreed  to  pay  as  commissions  not  more  than  $3,000,  nor 
less  than  $2,500,  "depending  upon  the  terms  and  conditions  made 
with  the  proposed  tenants."  Defendant  finally  decided  not  to 
rent,  whereupon  the  negotiations  were  terminated.  Held,  that 
defendant  was  not  liable  for  the  commissions.  Cohn  v.  James 
McCreary  Realty  Cor.,  92  N.  Y.  S.  143,  102  App.  Div.  611; 
Twelfth  St.  Market  Co.  v.  Jackson,  102  Pa.  St.  269;  Mignenult 
v.  QuntJier,  171  111.  App.  311 ;  Diamond  v.  Fay,  138  P.  933,  23 
Cal.  App.  566 ;  Fleming  v.  James  L.  Holden  Co.,  166  N.  W.  1042, 
200  Mich.  519;  Brokawn  v.  L.  G.  House  &  J.  Fink  Co.,  171  N. 
Y.  Sup.  121 ;  Weller  v.  Phillip  Gross  Realty  Co.,  180  N.  W.  927, 
—  Wis.  Sup.  — .  See  Sec.  33. 

Sec.   216b.     Broker  barred   commission  when  building  de- 
stroyed before  lease  was  signed. 

An  owner  agreed  to  pay  a  commission  for  procuring  a  tenant 
for  a  building  to  be  erected,  payable  upon  the  signing  of  the 


194  AMERICAN   LAW   KEAL   ESTATE   AGENCY. 

lease,  and  which  contract  for  a  lease,  binding  the  tenant  pro- 
cured by  plaintiff,  was  terminated  by  the  destruction  of  the  build- 
ing before  completion,  and  before  any  lease  had  been  signed,  and 
owner  was  not  in  default  in  not  securing  the  signing  of  the  lease, 
and  hence  not  liable  for  commissions.  Leventritt  v.  Cowell,  132 
P.  627,  21  Cal.  App.  597. 

Sec.  216c.    Broker  earned  commission  for  lease  which  failed 
because  husband  did  not  sign  it. 

Where  a  broker  employed  by  a  married  woman  to  procure  a 
lessee  on  her  separate  real  estate  procured  a  lessee  willing  to 
lease  the  property  on  the  terms  specified,  that  she  must  execute 
a  lease  in  which  her  husband  joins  so  as  to  vest  a  marketable 
title,  and  where  she  fails  to  do  so,  and  the  lessee  refuses  to  take 
the  lease  executed  by  her  alone,  the  broker  may,  nevertheless,  re- 
cover his  commission.  Ennis  v.  Enger,  133  S.  W.  850,  152  Mo. 
App.  493. 

Sec.  216d.    Broker  barred  commissions  where  lessee  failed  to 
give  satisfactory  security. 

Plaintiff  broker  procured  a  contract  for  a  lease,  in  which  a 
contractor  joined,  agreeing  to  make  alterations  for  a  prospective 
lessee,  on  his  furnishing  security,  was  not  entitled  to  commissions 
where  the  security  was  not  provided,  owing  to  the  financial  ina- 
bility of  the  lessee.  Geo.  E.  Reed  &  Co.  v.  Sturges,  163  N".  Y. 
Sup.  559,  176  App.  Div.  657. 

Sec.  217.    Where  lease  was  to  highest  bidder,  broker  prevent- 
ing bidding  not  entitled  to  commissions. 
A  broker  does  not  earn  a  commission  for  obtaining  a  lease 
of  property  from  the  city,  where  he  was  not  the  procuring  cause 
thereof;  it  was  required  to  be  let  to  the  highest  bidder,  whereas 
the  only  service  he  rendered  was  in  preventing  the  attendance 
of  other  bidders.    Myers  v.  Dean,  29  N.  Y.  S.  578,  9  Misc.  183. 
See  also  Sec.  559,  441. 

Sec.  218.    In  action  for  commissions  for  securing   a  lease, 

defendant  can  show  contract  was  merely  tentative. 
In  an  action  for  commissions  for  procuring  a  contract  for  a 
lease,  defendant  might  show  as  against  the  plaintiff  by  parol, 


LEASES.  195 

that  the  contract  was  merely  provisional,  did  not  express  all 
the  terms  of  the  lease  to  be  entered  into  between  the  parties, 
as  was  also  understood  by  plaintiff,  and  that  the  lease  was  never 
consummated,  because  no  final  agreement  was  ever  made  be- 
tween defendant  and  the  lessee.  Buxton  v.  Beat,  49  Minn.  230, 
51  N.  W.  918 ;  Crombie  v.  Waldo,  137  N.  Y.  129,  32  N.  B.  1042, 
33  N.  E.  744;  Laws  v.  Schmidt,  80  Ohio  St.  108,  88  N.  E.  319. 

Sec.  219.    Finding  for  plaintiff  as  procuring  cause  of  the  lease 

excludes  co-operation. 

A  finding  for  plaintiff,  on  the  question  whether  he  was  the 
procuring  cause  in  effecting  a  lease,  excludes  the  idea  that  any 
other  agency  co-operated  to  bring  about  that  result.  Bumfield 
v.  P oilier,  etc.  Mfg.  Co.,  20  K  Y.  S.  615,  1  Misc.  92.  See  also 
Sec.  446. 

Sec.  220.    Broker  to  secure  lease  for  eight  years,  to  earn  com- 
missions must  secure  one  for  that  time. 

A  broker  was  employed  to  obtain  a  lease  for  at  least  eight 
years  of  premises  in  which  to  conduct  a  certain  business;  he 
obtained  a  lease  on  premises  owned  in  part  by  infants,  the 
youngest  of  whom  would  be  of  age  in  six  years; 'the  principal 
refused  to  accept  the  lease.  Held,  that  the  broker  was  not  enti- 
tled to  his  commissions,  since  the  guardian  of  the  infants  could 
make  a  lease  good  only  during  the  infants'  minority,  and 
hence  the  broker  has  not  found  a  person  "able"  to  enter  into 
the  contract  which  he  was  authorized  to  negotiate.  Folsom  v. 
Hesse,  53  N.  Y.  S.  97,  24  Misc.  713. 

Sec.  221.    Lessor's  rights  under  a  receipt  not  affected  by  secret 

understanding  of  broker  with  tenant. 

Where  lessors  were  induced  to  execute  a  lease  to  a  tenant 
procured  by  the  lessor's  broker,  on  receiving  the  broker's  re- 
ceipt for  his  commissions  from  the  tenant,  any  agreement  be- 
tween the  broker  and  the  tenant  as  to  the  use  of  the  receipt, 
made  without  the  knowledge  or  consent  of  the  lessors,  would 
not  affect  their  rights  under  the  receipt.  Davis  v.  True,  85 
N.  Y.  S.  843,  89  App.  Div.  319. 


196  AMERICAN   LAW   HEAL   ESTATE   AGENCY. 

Sec.  221a.    Broker  entitled  to  commissions  on  furnishing  a 
satisfactory  tenant. 

For  a  broker  to  be  entitled  to  commissions  for  procuring  a 
tenant,  he  must  present  a  satisfactory  person,  who  is  ready,  able 
and  willing  to  enter  into  a  lease  proposed  by  the  owner,  and  that 
the  business  to  be  conducted  in  the  leased  premises  be  legitimate 
and  lawful.  Diamond  v.  Fay,  138.  P.  933,  23  Cal.  App.  566. 

Where  the  owners  of  a  mining  lease  employed  brokers  to  sell 
the  same  within  a  stipulated  time,  for  a  price  based  on  the  daily 
gauge  of  the  output,  and  the  owners  accepted  the  offer,  with 
knowledge  that  the  gauge  had  not  been  made,  they  waived  such 
provision,  and  the  brokers  were  entitled  to  their  compensation. 
Bailey  v.  Eowe,  124  P.  282,  33  Okl.  51. 

Broker  entitled  to  commissions  for  procuring  a  purchaser  or 
lessee,  presents  a  lessee,  and  the  principal  accepts  him  and  enters 
into  an  enforceable  contract  with  him,  though  lessee  proves  irre- 
sponsible. Lowenstein  v.  Holmes,  135  P.  727,  40  Okl.  33. 

Sec.  221b.    Lessee  procured  by  broker  making  lease  with  co- 
lessee;  commissions  earned. 

That  lessee  procured  by  a  broker  executed  a  lease  with  other 
persons  as  co-lessees,  whom  the  broker  did  not  secure,  will  not 
defeat  the  broker's  right  to  commissions.  Stineman  v.  Gottschalk, 
167  P.  550,  —  Cal.  App.  — . 

Sec.  221c.    Acceptance  of  lease  by  owner's  lawyer  entitled 
broker  to  commission. 

Where  plaintiff  engaged  by  defendant  to  procure  a  lease  called 
up  the  owner,  who  referred  him  to  a  lawyer,  from  whom  defend- 
ant procured  oral  acceptance  of  terms  offered  by  defendant,  com- 
mission was  earned,  although  owner  of  the  premises  had  given 
no  written  authority  (Eeal  Property  Law,  Sees.  130,  140,  242) 
requiring  power  to  pass  an  estate  to  be  in  writing,  not  applying. 
Grossman  v.  Greenspan,  172  N.  Y.  Sup.  343. 

Sec.  221d.    Lease  secured  in  violation  of  instructions  did  not 
bar  broker's  right  to  commission. 

Where  owner  of  premises  employed  a  broker  to  negotiate  a 
lease  for  premises  at  increased  rental,  with  specific  instructions 


LEASES.  197 

not  to  approach  the  present  tenant  whom  he  wished  to  retain, 
if  possible,  but  wished  first  to  secure  another  in  case  the  present 
tenant  would  not  pay  the  increased  rental,  and  the  broker  ap- 
proached the  tenant  and  secured  his  renewal  of  lease  at  the  in- 
creased rental.  Held,  that  the  broker  did  not  forfeit  his  com- 
mission. Keebler  v.  Franks,  210  111.  App.  118. 

Sec.  221e.    Defendants  held  not  entitled  to  any  part  of  com- 
mission paid  to  other  broker  for  lease. 

In  an  action  between  brokers  as  to  right  to  commissions  for 
procuring  a  lease,  which  did  not  provide  for  giving  of  bond  by 
tenant  with  respect  to  contemplated  demolition  of  building;  that 
defendants  were  instrumental  in  bringing  parties  to  agreement 
as  to  such  security  was  insufficient  to  authorize  the  giving  of  any 
part  of  the  commission  to  defendants.  Lewis  B.  Preston,  Inc.  v. 
Rice,  173  N.  Y.  Sup.  691. 

Sec.  221f.    Broker  not  entitled  to  commission  for  securing1 
irresponsible  lessee. 

In  an  action  for  broker's  commissions  on  an  alleged  procure- 
ment of  a  lessee,  where  it  was  shown  that  the  proposed  lessee  was 
not  able  to  perform,  his  total  assets  being  insufficient  to  cover 
the  cash  deposit  required  by  the  lease,  no  commission  can  be  re- 
covered. Bloom  v.  Berry,  176  N.  Y.  Sup.  513. 


CHAPTER  V. 
LOANS  ON  REAL  ESTATE. 

Sec.  222.    One  employing  a  broker  to  obtain  a  loan,  without 

disclosing  the  owner  of  the  land,  liable  for  commissions. 

One  who  procures  a  real  estate  broker  to  obtain  a  loan  on 

land,  without  disclosing  the  name  of  the  owner  of  the  land  for 

whom  the  loan  is  intended,  makes  himself  liable  for  the  value 

of  the  broker's  services.     Bacon  v.  Rupert,  39  Minn.  512,  40 

N.  W.  832.    See  also  Sec.  398. 

Sec.  223.    Broker  to  be  paid  commissions  from  proceeds,  not 

entitled  thereto  where  loan  is  refused  for  bad  title. 
Under  a  complaint  alleging  that  plaintiff  was  employed  by 
defendant  to  procure  a  loan  on  real  estate,  for  which  defendant 
promised  to  pay  a  certain  sum  on  performance,  plaintiff  was 
not  entitled  to  recover  on  proof  that  he  obtained  a  person 
willing  to  make  the  loan,  but  refused  to  do  so,  because  of  defects 
in  the  defendant's  title  to  the  property  which  was  to  be  mort- 
gaged to  secure  the  loan.  Hess  v.  Eggers,  78  N.  Y.  S.  1119, 
38  Misc.  726;  Stone  v.  Goodstein,  97  N.  Y.  S.  1035,  49  Misc. 
482.  Contra,  Putzel  v.  Wilson,  2  N.  Y.  S.  47,  49  Hun,  220. 
See  also  Sec.  570. 

Sec.  224.    Broker  does  not  earn  commissions  where  lender 

refuses  to  consummate  loan. 

A  broker  employed  to  procure  a  loan  does  not  earn  his  com- 
mission by  merely  securing  a  lender  who  offers  to  make  the 
loan,  but  who,  after  acceptance  by  the  borrower,  refuses  to 
consummate  the  transaction.  Ashfield  v.  Case,  87  N.  Y.  S. 
649,  93  App.  Div.  452;  Hanesley  v.  Bagley,  109  Ga.  346,  34' 
S.  E.  584;  Hurry  v.  East  End  Imp.  Co.,  22  Ky.  L.  E.  147, 
60  S.  W.  648;  Marmaduke  v.  Martin,  90  Mo.  App.  629; 

198 


LOANS  ON   EEAL   ESTATE.  199 

Crasto  v.  White,  5  N.  Y.  S.  718,  52  Hun,  473 ;  Finck  v.  M enke, 
67  K  Y.  S.  954,  33  Misc.  769;  Duckworth  v.  Rogers,  95  N.  Y. 
S.  1089,  109  App.  Div.  168;  Jones  v.  Buck,  126  N.  W.  153,  147 
Iowa,  494,  aff.  judg.  on  re.  120  K  W.  113;  Birnbaum  v.  Nuger, 
135  N.  Y.  Sup.  1;  Finck  v.  Carlson,  137  N.  Y.  Sup.  702.  See 
Sees.  119,  193,  272,  449,  556. 

Sec.  225.    Broker  not  entitled  to  compensation  for  securing 

conditional  loan  defeated  by  defect  in  title. 
A  broker  employed  to  procure  a  loan  on  real  estate  is  not 
entitled  to  compensation  merely  because  a  lender  was  found 
who  agreed  to  make  the  loan,  "subject  to  conditions,  title, 
etc.,  being  found  ultimately  satisfactory,"  but  who  declined 
to  make  the  loan  after  an  examination  of  defendant's  title  to 
the  real  estate.  Chambers  v.  Ackley,  91  N.  Y.  S.  78;  Gatling 
v.  Central  Spar  Verein,  73  N.  Y.  S.  496,  67  App.  D.  50.  See 
also  Sec.  534. 

Sec.  225a.    Procuring  agreement  to  make  loan  insufficient. 

Procuring  an  agreement  to  make  a  loan  is  not  the  same  as 
procuring  a  loan.    Rosenthal  v.  Gunn,  119  N.  Y.  S.  165. 

Sec.  226.    Broker  to  recover  compensation  for  loan  must  show 

on  same  terms  as  to  payment,  interest,  etc. 
In  an  action  to  recover  upon  an  agreement  by  defendant  to 
pay  a  specified  compensation,  when  notified  of  the  accept- 
ance of  an  application  for  a  loan  addressed  to  the  plaintiff, 
who  was  to  undertake  to  procure  the  loan,  it  was  held  that 
although  the  evidence  showed  the  acceptance  by  a  corporation 
of  an  application  made  to  it  by  the  plaintiff  for  a  loan,  it  was 
insufficient  to  sustain  a  recovery,  because  it  did  not  show  that 
the  application  made  to  the  corporation  and  accepted  by  it 
embraced  the  same  terms,  as  to  rate  of  interest  and  time,  as 
had  been  specified  in  the  application  of  the  defendant.  Peet 
v.  Sherwood,  47  Minn.  347,  50  N.  W.  929;  Illingsworth  v. 
Slosson,  19  111.  App.  612;  Kronenberger  v.  Teshemacher,  101 
N.  Y.  S.  764,  52  Misc.  130;  Sparks  v.  Grassi,  165  N.  Y.  Sup. 
519 ;  McCoy  v.  Zahn  Corporation,  191  P.  20,  —  Cal.  Sup.  — . 


200  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  226a.     Defendant  held  liable  to  broker  for  commissions 
for  procuring  loan. 

Defendant's  real  property  was  heavily  incumbered  with 
back  taxes.  Under  an  act  of  the  Legislature  she  could  by 
paying  them  off  by  a  given  date,  gain  a  rebate  of  interest. 
To  accomplish  this  end,  and  after  estimating  the  amount  re- 
quired, she  employed  plaintiff  to  procure  a  loan  on  bond  and 
mortgage  "for  $70,000  or  $80,000,"  his  commission  to  be  five 
per  cent.,  and  later  the  amount  was  raised  to  $85,000.  Plain- 
tiff agreed  to  procure  it  in  time  for  a  compliance  with  the 
act.  Defendant  assumed  the  expense  of  "procuring  tax  bills." 
Plaintiff  in  due  'time  found  a  lender  ready,  able  and  willing 
to  furnish  $85,000.  Held,  that  the  agreement  imposed  no  ob- 
ligation upon  either  plaintiff  or  the  proposed  lender  to  obtain 
searches  and  estimates  showing  the  exact  amount  of  the  taxes, 
and  that  the  failure  to  do  so  did  not  relieve  defendant  from 
her  liability  for  plaintiff's  commissions.  Scott  v.  Woolsey,  47 
N.  Y.  S.  320,  20  App.  Div.  541. 

Sec.  227.    On  question  of  compensation  for  loan,  former  agree- 
ment as  to  value  of  services  ignored. 

The  fact  that  at  one  time  there  had  been  an  agreement  be- 
tween certain  persons  as  to  the  compensation  to  be  paid  for 
services  in  procuring  a  loan  is  not,  where  the  agreement  has 
been  abandoned,  entitled  to  any  consideration  in  an  action  to 
determine  the  reasonable  value  of  such  services.  Carruthers 
v.  Towne,  86  Iowa  318,  53  N.  W.  240. 

Sec.  228.    Reasonable  value  of  broker's  services  in  procuring 

loan  may  be  shown  by  testimony  of  experts. 
Where  loan  brokers  are  employed  to  secure  a  loan,  and  dif- 
ferent propositions  as  to  compensation  are  made,  and  no  pro- 
posal as  to  compensation  applies  perfectly,  and  the  parties 
separate  expressing  themselves  merely  as  willing  to  do  what 
is  right  in  the  matter,  evidence  as  to  the  reasonable  value  of 
the  services  rendered  is,  in  view  of  the  uncertainty  of  any 
agreement  for  specific  compensation,  properly  admitted;  the 
reasonable  value  of  the  services  required  to  procure  a  certain 
loan  may  be  shown  by  the  testimony  of  persons  experienced 
in  making  loans.  Id. 


LOANS  ON  REAL  ESTATE.  201 

Sec.  228a.    Broker  for  loan  required  to  supply  the  same  with- 
in a  reasonable  time  after  abstract  furnished. 

Contract  with  a  broker  to  pay  commission  for  securing  a  loan 
"if  within  days"  after  application  for  the  loan  was  ap- 
proved, and  customer  furnished  an  abstract,  the  broker  should  be 
ready  to  complete  the  loan,  required  that  the  broker  was  ready  to 
supply  the  loan  within  a  reasonable  time  after  the  abstract  was 
furnished.  Allen  v.  Stradford,  78  S.  955,  —  Ala.  Sup.  — . 

Sec.  229.     Broker  liable  for  loss  when  loan  made  upon  in- 
sufficient security. 

A  loan  broker  is  liable  to  the  lender  on  real  estate  for  the 
loss  of  a  loan  negotiated  by  the  broker  upon  a  mortgage  which 
proved  insufficient  security  in  consequence  of  prior  incum- 
brances,  where  the  broker  agreed  to  loan  the  money  only  on 
first  mortgage  security  on  real  estate  worth  double  the  sum 
loaned,  notwithstanding  the  property  may  have  been,  in  fact, 
of  double  the  value  of  all  the  incumbrances  thereon.  Shipherd 
v.  Field,  70  111.  438;  Nicolai  v.  Lyon,  8  Ore.  56;  Turribull  v. 
Gadsden,  2  Strob.  (Eq.)  (S.  C.)  14;  Rubens  v.  Herd,  121  Cal. 
17,  53  P.  432.  See  Sees.  346,  350,  403. 

Sec.  230.    A  loan  broker  is  bound  to  make  good  money  lost 

through  his  negligence. 

A  money  lender  to  whom  a  sum  of  money  is  given  to  in- 
vest is  bound  to  exercise  reasonable  skill  and  prudence;  by  his 
business  he  holds  himself  out  as  possessing  competent  skill  to 
determine  what  reasonable  care  and  prudence  requires;  if  he 
fails  to  exercise  these,  and  through  his  negligence  loss  occurs, 
he  is  liable  to  make  it  good.  McFarland  v.  McClure  (Pa.  Sup. 
Ct.  1886),  5  A.  50.  See  also  Sees.  350,  403. 

Sec.  231.    Bill   for   extra   compensation   for   procuring  loan 
should  be  separated  to  see  whether  it  is  reasonable. 

While  it  may  be  allowable  to  pay  a  broker  for  extra  ser- 
vices, not  usually  necessary  in  procuring  loans,  in  addition  to 
the  prescribed  brokerage,  the  items  composing  his  bill  should 
be  separated  so  that  it  may  be  seen  whether  the  compensation 


202  AMERICAN   LAW   HEAL   ESTATE   AGENCY. 

is  reasonable,  or  only  a  cover  for  demanding  a  larger  commis- 
sion.    Cook  v.  Phillips,  56  N.  Y.  310.    See  also  Sec.  241. 

Sec.  232.    Broker  for  seller  obtaining  loan  for  buyer  from 

seller  can  not  recover  commissions  therefor  from  buyer. 
A  broker  employed  by  the  owner  of  lands  to  procure  a  sale 
thereof  to  one  who  shall  agree  to  take  from  the  owner  a  loan 
and  improve  the  property  can  not,  after  recovering  compen- 
sation from  the  owner  of  the  property  for  effecting  the  sale, 
recover  compensation  from  the  purchaser  for  procuring  the 
loan  to  him.  Vanderpool  v.  Kearne,  2  E.  D.  Smith  (N.  Y.), 
170.  See  Sec.  25.  Compare  Sec.  254. 

Sec.  232a.    Who  acts  for  both  parties  in  loan  transaction  is) 
entitled  to  commission  agreed  by  either  to  be  paid. 

Who,  in  a  loan  transaction,  acts  for  both  borrower  and  lender, 
with  their  full  knowledge  and  approval,  is  entitled  to  any  com- 
mission agreed  by  either  of  'them  to  be  paid.  Sampson  v.  Vander- 
wilt,  173  P.  297,  103  Kan.  199. 

Sec.  233.    Broker  procuring  loan  for  less  than  asked,  which  is 
accepted,  earns  commissions. 

In  an  action  upon  an  agreement  to  pay  a  broker  a  commis- 
sion for  obtaining  a  loan,  it  appeared  that  a  loan  for  a  less 
amount  was  obtained,  and  at  first  accepted,  but  subsequently 
declined  by  the  principal  as  being  insufficient  for  his  purposes. 
Held,  that  the  services  had  been  rendered  and  the  commission 
was  due,  in  the  absence  of  any  usage  -among  New  York  brokers 
to  receive  no  compensation  unless  the  matter  was  consum- 
mated. Van  Lieu  v.  Byrnes,  1  Hilton  (N.  Y.),  133. 

Sec.  234.    Broker  entitled  to  commissions  on  finding  lender 

unless  rights  varied  by  special  contract. 
A  broker  employed  to  effect  a  loan  is  entitled  to  his  com- 
missions, when  he  has  found  a  lender  who  has  the  money  and 
who  approves  of  the  security,  unless  his  rights  are  varied  by 
special  contract;  there  is  always  an  implied  condition  that  the 
borrower  will  show  a  good  title.  Budd  v.  Z oiler,  52  Mo.  238; 


LOANS  ON  REAL  ESTATE.  203 

Eundle  v.  Stoats,  19  Colo.  App.  164,  73  P.  1091;  SiTberberg 
v.  Chipman,  42  Colo.  20,  93  P.  1130;  Brillow  v.  Ozienkowski, 
112  111.  App.  165 ;  Phister  v.  Gove,  48  Mo.  App.  455 ;  Demarest 
v.  Spiral  Eiv.  Tube  Co.,  71  N.  J.  L.  14,  58  A.  161;  Rockwell 
v.  Hurst,  13  N.  Y.  S.  290;  Van  Orden  v.  Morris,  42  N.  Y.  S. 
473,  18  Misc.  579,  43  S.  1108,  19  M.  497 ;  Chambers  v.  Peters, 
63  N.  Y.  S.  151,  30  Misc.  756;  Finck  v.  Schmidt,  96  N.  Y.  S. 
197,  48  Misc.  503;  Nefletberger  v.  Garner,  109  N.  Y.  S.  747, 
125  App.  Div.  420;  Steinmetz  v.  Pancoast,  17  Phila.  (Pa.) 
185;  Dorian  v.  Forrest,  91  N.  Y.  S.  431,  101  App.  Div.  32;  Cru- 
ick  v.  Bruclcman,  151  S.  W.  176,  167  Mo.  App.  687;  Bartlett  v. 
Garrett,  175  S.  W.  79,  188  Mo.  App.  144;  Hevia  v.  Lopardo,  111 
N.  Y.  Supp.  663,  127  App.  Div.  189;  Wolf  v.  Mellwin  Realty 
&  Con.  Co.,  134  N.  Y.  Sup.  491;  Glendenning  v.  Stafford  Con. 
Co.,  136  N.  Y.  Sup.  76;  Carroll  v.  Hassell,  143  S.  W.  835,  161 
Mo.  App.  424;  Calvin  Philip  &  Co.  v.  Langlow,  104  P.  610,  55. 
Wash.  385;  Steele  v.  Rumore,  117  K  Y.  Sup.  189;  Oettinger  v. 
Levitt,  186  111.  App.  104;  Little  v.  Liggett,  121  P.  1125,  86  Kan. 
747,  40  L.  E.  A.  (N.  S.)  39;  Sugarman  v.  Fraser,  128  N.  Y. 
Sup.  718,  71  Misc.  Eep.  416;  Bledsoe  v.  Lombard,  194  S.  W.  518, 
—  Mo.  App.  — ;  West  &  Wheeler  v.  Dierssen,  173  P.  739,  - 
Wash.  Sup.  — ;  A.  W.  McLaughlin  &  Co.  v.  Southern  Hotel  Co., 
177  N.  Y.  Sup.  323;  Holman  v.  Fatten,  124  N.  E.  86,  227  N.  Y. 
22,  rev.  judg.  156  K  Y.  Sup.  613,  re.  denied,  125  N".  E.  919; 
Harter  v.  Walsh,  70  Pa.  Super.  Ct.  442 ;  Hendricks  v.  Cobb,  175 
N.  W.  225,  —  Mich.  Sup.  — ;  Daniel  v.  Drury,  267  F.  751. 

Sec.  235.    Broker  not  reporting  loan  barred  commissions  on 
applicant  himself  procuring. 

Where  an  application  for  a  loan  is  made  to  a  broker,  who  se- 
cures a  party  willing  to  make  the  loan,  but  does  not  so  notify 
the  applicant,  and  after  the  time  within  which  the  broker  was 
to  place  the  loan  has  expired,  the  applicant,  without  knowledge 
of  the  steps  taken  by  the  broker,  secures  a  loan  from  the  same 
person  with  whom  the  broker  had  arranged  to  place  it,  he  is  not 
entitled  to  a  commission.  Biddison  v.  Johnson,  50  111.  App.  173. 
See  also  Sees.  312,  431,  471. 


204  AMEBICAN  LAW  HEAL   ESTATE  AGENCY. 

Sec.  236.    In  action  by  broker  for  commissions  for  procuring 
loan,  not  necessary  to  prove  tender. 

In  an  action  by  brokers  to  recover  commissions  for  negotiat- 
ing a  loan,  which  the  proposed  borrower  failed  to  accept  and 
give  security  for  as  agreed,  they  need  not  prove  a  tender  of 
the  money,  as  it  is  the  client's  duty  on  notice  of  the  money 
being  procured  to  give  the  proposed  security  and  take  the 
money.  Telford  v.  Brinkerhoff,  45  111.  App.  586. 

Sec.  237.     Admissibility  of  correspondence  to  establish  broker's 
agency  in  making  loan. 

On  an  issue  as  to  whether  a  loan  broker  was  the  agent  of 
defendant  in  negotiating  a  loan  for  him,  or  the  agent  of  plain- 
tiff company  which  made  the  loan,  correspondence  between  the 
broker  and  the  plaintiff's  manager  relative  to  defendant's  loan 
and  a  requested  extension  thereof,  and  concerning  other  loans 
made  by  plaintiff  through  the  broker,  is  admissible  in  evidence, 
and  the  question  is  one  for  the  jury.  Jesson  v.  Texas  Land  & 
Loan  Co.,  3  Tex.  Civ.  App.  25,  21  S.  W.  624. 

Sec.  238.    Improper  to  submit  to  jury  whether  loan  broker  im- 
properly entered  release  of  judgment. 

A  loan  broker  was  the  agent  for  both  parties  in  the  negotia- 
tion of  a  loan,  which  was  to  be  secured  by  a  trust  deed  of 
land  incumbered  by  a  judgment;  the  amount  of  the  loan  was 
sent  to  him  by  the  lender,  with  instructions  to  see  that  the 
amount  required  by  the  terms  of  the  deed  be  applied  to  se- 
cure a  release  of  this  judgment  by  the  original  judgment  cred- 
itor, or  a  transfer  of  it  to  him  by  the  present  holder  was  so 
applied;  the  agent,  at  first  being  unable  to  obtain  a  release, 
took  a  transfer  of  the  judgment,  and  afterwards  obtained  a 
release,  which  he  forwarded  to  the  lender;  the  transaction  was 
completed,  and  subsequently,  at  the  request  of  the  borrower, 
and  without  any  further  instructions  from  the  lender,  the 
agent  entered  on  the  margin  of  the  judgment  record  a  receipt 
in  full  of  the  judgment.  Held,  that  an  instruction,  in  an 
action  to  obtain  execution  under  the  judgment,  submitting  the 
Question  whether  the  agent  was  authorized  to  execute  a  sat- 


LOANS   ON   HEAL   ESTATE.  205 

isfaction  of  the  judgment,  was  improper.     Brown  v.  Dennis 
(Tex.  Civ.  App.  '95),  30  S.  W.  272. 

Sec.  239.    Authority  to  broker  to  provide  mortgage  for  loan 

confined  to  land  designated. 

A  written  contract  by  which  defendant  agrees  to  pay  plain- 
tiff for  securing  a  loan  for  him,  to  mortgage  certain  property 
therefor,  and  to  ''authorize,  ratify  and  confirm  every  act  and 
thing  the  said  M.  may  do  in  negotiating  said  loan, ' '  covers  only 
every  act  and  thing  touching  the  land  to  be  mortgaged,  and 
does  not  bind  defendant  to  sign  a  mortgage  containing  a  cove- 
nant waiving  the  benefit  of  homestead  and  exemption  laws  as 
to  all  his  property.  Roberts  v.  Matthews,  77  Ga.  458. 

Sec.  240.  Where  principal  six  months  after  cured  defect  in 
title,  lender  then  refusing  to  loan,  broker  earned  com- 
missions. 

The  fact  that  the  principal  cures  the  defect  in  his  title, 
does  not  deprive  the  broker  of  his  right  to  commissions,  where 
the  principal  gave  no  notice  that  the  defect  was^  cured  until 
six  months  after  the  customer  was  procured,  at  which  time 
the  customer  refused  to  make  the  loan  because  of  changed 
financial  conditions.  Clark  v.  Henry  G.  Thompson,  etc.,  Co., 
75  Conn.  161,  52  A.  720. 

Sec.  240a.    When  loan  not  made  broker  must  prove  title  not 

good. 

If  the  title  to  property  on  which  a  loan  was  to  be  made  was 
not  good,  it  should  be  proved  in  a  suit  for  procuring  a  loan 
thereon  which  was  not  made.  Rosenthal  v.  Gunn,  119  N.  Y. 
S.  165. 

Sec.  241.  Broker  charging  more,  nevertheless  entitled  to  stat- 
utory commissions  for  procuring  loan. 

Where  a  broker  charges  greater  commissions  for  his  services 
than  the  statute  allows,  in  the  absence  of  an  agreement,  this 
does  not  deprive  him  of  the  legal  compensation.  Vanderpool 
v.  Kearns,  2  E.  D.  Smith  (N.  Y.),  170;  Buchanan  v.  Tilden, 
45  N.  Y.  S.  417,  18  App.  Div.  123 ;  H.  D.  Robins  &  Co.  v.  DrucTc- 
man,  181  N.  Y.  Sup.  367. 


206  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  242.    Broker  entitled  to  commissions  for  procuring  loan 
though  principal  refuses  to  take. 

A  broker  is  entitled  to  a  commission  for  procuring  a  loan 
at  the  request  of  his  principal,  though  the  latter  refuses  to 
take  it  when  procured.  Squires  v.  King,  15  Colo.  416,  417; 
Collier  v.  Wayman,  114  Ga.  944,  41  S.  E.  50 ;  Vinton  v.  Bald- 
win, 88  Ind.  104;  Hackman  v.  Gutweiler,  66  Mo.  App.  244; 
Lord  v.  Moran,  64  N.  Y.  S.  37,  31  Misc.  750;  Perry  v.  Bates, 
100  F.  Y.  S.  881,  115  App.  Div.  337;  Hughes  v.  Chung  Sun 
Tung  Co.,  154  P.  299,  28  Cal.  App.  371,  re.  in  Sup.  Ct.  den.  154 
P.  301,  28  Cal.  App.  371;  Silberberg  v.  Chipman,  93  P.  1130,  42 
Colo.  20,  15  L.  E.  15,  L.  R.  A.  (N.  S.)  187;  Van  Orden  v.  Simp- 
son, 153  N.  Y.  Sup.  134,  90  Misc.  Eep.  322.  Compare  Sec.  242a. 

Where  an  owner  applied  to  a  broker  for  a  loan  and  agreed  to 
pay  a  specified  sum  to  cover  the  expenses,  and  thereafter  he  re- 
fused to  take  the  loan  and  notified  the  broker  to  discontinue  all 
negotiations,  the  broker  could  recover  his  commission  and  the  ex- 
penses incurred  up  to  the  time  of  the  notification.  Du  Bois  v. 
Mullins,  140  N.  Y.  Supp.  1. 

• 

Sec.  242a.     Broker  to  procure  loan  not  entitled  to  commis- 
sions unless  loan  made. 

As  a  general  rule,  brokers  employed  to  procure  a  loan  are  not 
entitled  to  the  commission  therefor  until  the  loan  is  made.  Hol- 
liday  v.  Roxbury  Distilling  Co.,  115  N.  Y.  S.  383;  Slawson  & 
Hobbs  v.  Rafter,  134  N.  Y.  Sup.  585,  76  Misc.  Rep.  199 ;  Birn- 
baum  v.  Nuger,  135  N.  Y.  Sup.  1;  Stogsdill  v.  Holmes,  169  S. 
W.  961,  114  Ark.  574;  Kinkead  v.  Hartley,  143  N.  W.  591,  161 
Iowa,  613,  Ann.  Gas.  1915  D,  1 ;  Sparks  v.  Grassi,  165  N.  Y. 
Sup.  519;  In  re  Kaufmans'  Est.,  67  Pa.  Super.  Ct.  456,  465; 
Colvin  Philips  &  Co.  v.  Newoc  Co.,  172  P.  355,  —  Wash.  Sup. 
-;  Hutcliings  v.  Binford,  226  S.  W.  537,  —  Tex.  Civ.  App.  — ; 
Mellin  v.  McDermott,  211  111.  App.  268. 

Where  one  employing  a  broker  to  procure  a  loan  on  certain 
securities  may  be  liable  for  breach  of  the  contract,  if  the  se- 
curities are  not  as  valuable  as  he  supposed  and  represented, 
so  as  to  prevent  him  from  obtaining  the  loan,  the  broker  would 
not  be  entitled  to  recover  commissions  as  for  the  full  perform- 
ance of  the  contract.  Holliday  v.  Roxbury  Distilling  Co.,  115 
N.  Y.  S.  383.  Compare  Sec.  242. 


LOANS  ON  BEAL  ESTATE.  207 

Sec.  243.    Loan  broker  to  whom  borrower  paid  commissions 

his  agent,  though  lender  took  payments  from  him, 
Complainant  requested  a  broker  to  find  some  one  to  whom 
complainant  could  loan  a  sum  of  money;  the  broker  made  a 
loan  of  such  an  amount  to  defendant,  advancing  his  own  money 
and  taking  a  note  and  mortgage,  which  he  turned  over  to 
complainant;  complainant  paid  over  the  amount  to  the  broker; 
defendant  paid  the  broker  for  obtaining  the  loan;  subsequently 
defendant  made  payments  of  interest  to  the  broker,  who  re- 
mitted to  the  complainant;  on  such  occasions  complainant  re- 
quested the  broker  to  notify  defendant  when  the  interest  was 
due.  Held,  that  the  evidence  did  not  show  that  the  broker 
was  the  agent  of  the  complainant  in  receiving  the  payments. 
Ortmeier  v.  Ivory,  208  111.  577,  70  N.  E.  665;  Ward  v.  Trus- 
tees, 27  E.  I.  262  61  A.  651.  See  also  Sec.  254. 

Sec.  244.    Money  put  in  bank,  subject  to  check  of  broker  for 
loans,  did  not  make  him  agent  of  lender. 

The  mere  fact  that  the  lender  of  money  deposited  in  bank 
a  fund  which  should  be  subject  to  the  check  of  the  loan  broker 
for  the  amount  of  the  loan,  if  the  lender,  after  an  examina- 
tion by  himself  of  the  application  of  the  prospective  bor- 
rower, should  approve  the  same,  did  not  constitute  the  broker 
the  agent  of  the  lender  for  the  purpose  of  making  loans.  Barks- 
dale  v.  Security  Inv.  Co.,  120  Ga.  388,  47  S.  E.  943. 

Sec.  245.    Owner  reserving  right  and  himself  securing  loan, 
not  liable  to  broker  for  commissions. 

Where  a  broker  is  authorized  to  secure  a  loan  for  the  owner 
of  real  estate,  as  exclusive  agent,  for  the  purpose  of  taking  up 
a  mortgage,  the  owner  impliedly  reserves  the  right  to  obtain 
the  loan  himself,  and  if  he  closes  his  arrangements  before  a 
person  ready,  willing  and  able  to  take  the  loan  is  furnished, 
the  broker  is  not  entitled  to  commissions;  whether  the  loan  is 
secured  by  the  owner  from  a  third  party  or  by  a  renewal 
through  agreement  with  the  person  holding  the  note  and  mort- 
gage is  immaterial,  so  far  as  concerns  the  broker's  right  to  com- 
missions under  the  implied  obligations  of  the  latter 's  agency. 


208  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Mott  v.  Ferguson,  92  Minn.  201,  99  N.  W.  804;  Damson  v. 
Herndin,  125  Ga.  385,  54  S.  E.  92;  Kimball  v.  Hayes,  199 
Mass.  516,  85  N.  E.  875.  See  also  Sec.  247. 

Sec.  246.    Owner  refusing  loan  on  one  ground  subsequently 
estopped  to  set  up  another. 

Where  defendant  refused  to  accept  a  loan  negotiated  by  a 
broker,  on  the  ground  that  the  broker's  charge  for  his  services 
was  excessive,  defendant  could  not  resist  payment  for  such 
services  on  the  ground  that  the  lender  incorporated  a  new 
condition  in  the  application  requiring  defendant  to  comply 
with  its  rules  and  accept  the  loan  within  ten  days.  Hotchkiss 
v.  Kuehler,  83  N.  Y.  S.  710,  86  App.  Div.  265.  Contra,  The 
List  &  Son  Co.  v.  Chase,  80  0.  St.  42.  See  also  Sec.  840. 

Sec.  247.    Broker  failing  to  secure  loan,  principal  securing? 
from  same  party,  bars  commissions. 

Where  an  agent  was  negotiating  to  procure  a  loan  of  not  less 
than  $220,000,  but  failed  to  secure  anything  better  than  an  offer 
of  $210,000;  this  not  being  accepted  he  abandoned  the  matter; 
he  was  not  entitled  to  commissions  when  his  principal  subse- 
quently took  a  loan  of  $220,000  from  the  same  party.  Stone  v. 
Plant,  96  N".  Y.  S.  1030;  Cameron  v.  Ayres,  166  P.  801,  —  Cal. 
Sup.  — .  See  also  Sec.  245. 

Sec.  248.    Broker  to  examine  title  and  secure  loan,  barred  com- 
missions on  failure  by  defect  in  title. 

A  person  wishing  to  borrow  money  on  property  applied  to 
another  who  agreed  to  find  a  lender  and  to  have  the  title  ex- 
amined, and  to  charge  a  certain  sum,  which  would  include  the 
expense  of  examining  the  title  and  his  commission,  such  per- 
son to  give  the  agent  his  title  deeds  at  the  time;  a  defect  be- 
ing found  in  the  title  the  lender  refused  to  loan  the  money, 
and  the  agent  sued  for  the  amount  of  the  stipulated  compen- 
sation. Held,  that  such  agent  should  have  first  examined  the 
title  before  applying  for  a  loan ;  he  was  the  agent  for  that  pur- 
pose as  well  as  for  procuring  a  loan,  and  was  not  entitled  to 
commissions.  Budd  v.  Zoller,  52  Mo.  238.  See  also  Sec.  29. 


LOANS   ON   REAL   ESTATE.  209 

Sec.  248a.  Borrower  seeking  cancellation  of  note  and  deed 
of  trust  to  broker  required  to  supply  deficiencies  in  his 
title  to  land. 

In  an  action  to  cancel  a  note  and  deed  of  trust  given  to  a 
broker  to  procure  a  loan  on  farm  land,  where  the  application, 
signed  by  the  plaintiff,  the  prospective  borrower,  required  him 
to  furnish  an  abstract  showing  perfect  title  to  the  satisfaction  of 
the  prospective  lender;  held,  that  objections  by  lender  to  the  ab- 
stract tendered  were  reasonable,  and  in  good  faith  the  plaintiff 
was  bound  to  supply  such  deficiencies  before  he  was  entitled  to  a 
return  of  the  commission  note,  etc.  Crews  v.  Lombard,  216  S. 
W.  510,  —  Mo.  Sup.  — . 

Sec.  249.    Loan  defeated  through  wrong  dimensions  known  to 

broker  bars  commissions. 

In  an  action  by  a  broker  to  recover  a  commission  for  pro- 
curing a  loan,  it  appeared  that  the  written  portion  of  the  ap- 
plication for  the  loan  was  filled  in  by  the  broker,  and  he  was 
aware  when  defendant  signed  the  application  that  defendant 
was  uncertain  as  to  the  exact  dimensions  of  the  lot  on  which 
security  was  to  be  given,  though  the  dimensions  were  stated 
in  the  application,  and  the  loan  was  rejected  because  the  di- 
mensions were  not  correctly  given.  Held,  that,  inasmuch  as 
the  broker  was  equally  responsible  with  the  defendant  for  not 
disclosing  the  situation  to  the  lenders,  and  for  their  refusal  to 
make  the  loan,  he  could  not  recover.  Shropshire  v.  Frankel, 
91  N.  Y.  S.  79,  45  Misc.  616.  See  also  Sec.  435. 

Sec.  249a.  Broker  not  entitled  to  commission  for  loan  de- 
feated by  misrepresentation  by  owner. 

Where  defendants  employed  plaintiff  to  procure  a  loan  on  the 
security  of  certain  timber  and  coal  land,  and  plaintiff  found  a 
person  who  wished  to  purchase  the  timber,  making  an  advance 
of  the  amount  desired  by  defendants  as  a  loan,  but  he  discontin- 
ued negotiations  because  he  discovered  that  the  representations  of 
defendants  as  to  the  amount  of  timber  on  the  land  were  exces- 
sive, the  plaintiff  was  not  entitled  to  recover  the  agreed  commis- 
sion for  his  services.  McDonald  v.  Diederich,  118  P.  341,  65 
Wash.  480. 


210  AMERICAN  LAW  EEAL  ESTATE   AGENCY. 

Representations  by  defendants  as  to  the  quantity  of  timber  on 
the  land  offered  as  security  for  the  loan  which  the  plaintiff  was 
employed  to  procure  were  not  a  part  of  the  contract  between  the 
plaintiff  and  defendants  so  as  to  authorize  recovery  of  a  commis- 
sion in  case  of  failure  to  procure  the  loan  on  account  of  their 
falsity.  Id.  Crew  v.  Lombard,  216  S.  W.  510,  —  Mo.  Sup.  — . 

Sec.  250.    Where  loan  prevented  by  defective  title,  error  to 
grant  broker  judgment  for  full  compensation. 

Where  an  agreement  was  made  to  pay  plaintiff  $800,  if  he 
secured  a  certain  loan  for  defendant  on  its  property,  which 
sum  was  to  cover  all  fees,  lawyers'  charges,  disbursements,  etc., 
it  was  error  to  grant  a  judgment  for  the  full  amount,  where 
performance  was  prevented  by  reason  of  defendant's  defective 
title.  Gatling  v.  Central  Spar  Verein,  73  N.  Y.  S.  496,  67  App. 
D.  50 ;  Finck  v.  Pierce,  103  N.  Y.  S.  765,  53  Misc.  554.  See  also 
Sec.  572. 

Sec.  251.    Attorney  given  interest  in  land,  instead  of  cash,  as 

fee  for  procuring  loan. 

The  client  having  conveyed  to  the  attorney  an  interest  in 
the  estate  as  compensation  for  his  services,  instead  of  a  cash 
fee,  he  acquired  an  equitable  lien  thereon  for  his  compensa- 
tion in  procuring  the  loan.  Goad  v.  Hart,  128  Cal.  197,  60  P. 
761,  964. 

Sec.  252.    Verdict  for  broker  for  procuring  loan  set  aside  as 
against  the  weight  of  the  evidence. 

A  verdict  for  plaintiff  will  be  set  aside  as  against  the  weight 
of  the  evidence,  where,  on  the  issue,  whether  defendant  agreed 
to  pay  six  per  cent,  interest  for  the  loan,  so  as  to  render  him 
liable  to  plaintiff  for  procuring  a  person  ready  to  make  a  loan 
at  that  rate,  defendant  testified  that  he  did  not  agree  to  pay 
six  per  cent.,  and  his  testimony  was  contradicted  only  by  the 
agent  through  whom  the  loan  was  to  be  made,  who  testified 
to  a  conversation  with  defendant  about  the  loan,  and  stated 
that  the  rate  of  interest  was  to  be  six  per  cent.,  but  stated  no 
conversation  to  that  effect,  and  testified  that  he  wrote  defend- 
ant the  next  day  that  he  would  make  the  loan  at  six  per  cent. ; 


LOANS   ON"   EEAL   ESTATE.  211 

that  defendant  at  once  refused,  because  the  interest  was  too 
high,  and  that  he  told  plaintiff  so  when  the  question  of  inter- 
est was  broached;  since  it  is  apparent  that  the  statement  that 
six  per  cent,  was  to  he  paid  was  merely  an  inference  by  the 
plaintiff.  Crandall  v.  Phillips,  43  N.  Y.  S.  299,  13  App.  Div. 
118. 

Sec.  253.    Agreement  as  to  commissions  to  broker  for  procuring 
loan  a  question  for  the  jury. 

In  an  action  for  commissions  for  securing  a  loan,  where  the 
evidence  for  plaintiff,  though  contradicted  by  defendant,  tends 
to  show  an  agreement  to  pay  one  per  cent,  on  the  amount 
loaned  by  parties  secured  by  plaintiff,  the  question  as  to  such 
agreement  is  for  the  jury.  Carter  v.  Moss,  210  Pa.  St.  612,  60 
A.  310. 

Sec.  254.    Loan  to  purchaser  on  other  property,  procured  by 
seller's  broker,  makes  him  agent  of  purchaser  therefor. 

A  corporation  appointed  a  real  estate  broker  as  its  agent 
to  secure  a  purchaser  for  land  which  the  company  owned  in 
a  city  other  than  that  in  which  it  had  its  principal  office;  the 
person  thus  employed  put  up  a  "for  sale"  sign  with  his  name 
on  it  as  agent,  but  this  was  not  known  to  the  corporation;  a 
purchaser  was  procured  by  the  agent  and  offered  a  certain 
sum  for  the  property;  the  secretary  of  the  corporation  waited 
upon  the  purchaser  and  endeavored  to  secure  a  better  offer; 
not  succeeding  in  this,  he  said  that  the  purchaser  might  further 
"arrange  with"  the  agent,  naming  him,  or  "finish  it  out  with" 
the  agent;  the  corporation  subsequently  accepted  the  offer  of 
the  purchaser;  the  latter  then  employed  the  agent  to  raise 
money  on  a  morgage  on  other  real  estate  owned  by  him,  and 
such  a  mortgage  was  arranged  with  a  trust  company;  the 
money  was  paid  to  the  agent  who,  in  his  books,  credited  it 
to  the  account  of  the  purchaser,  and  made  certain  payments 
out  of  it  at  the  request  of  the  purchaser;  and  added  certain 
payments  to  it  received  from  the  purchaser,  so  that  the  amount 
of  the  loan,  which  was  the  amount  of  the  purchase  money, 
was  kept  about  the  same ;  delay  ocurred  in  delivering  the 
deed,  and  meantime  the  agent  died,  and  his  estate  was  found 


212  AMERICAN"   LAW   REAL   ESTATE   AGENCY. 

insolvent.  Held,  that  the  agent  had  no  authority  to  receive 
the  money  on  behalf  of  the  corporation,  and  that  in  placing 
the  loan  and  receiving  the  proceeds  thereof  he  acted  as  the 
agent  of  the  purchaser.  Louis  Bergdott  Brewing  Co.  v.  Bobe, 
33  Pa.  Super.  Ct.  490.  See  also  Sec.  243.  Compare  Sec.  232. 

Sec.  255.    Broker  to  procure  loan,  not  thereby  authorized  to 

collect  principal  or  interest. 

The  fact  that  a  loan  broker  negotiates  a  loan  does  not  au- 
thorize him  to  collect  either  principal  or  interest,  though  the 
security  be  payable  at  his  office;  nor  does  the  fact  that  he  has 
authority  to  collect  interest  authorize  him  to  collect  the  prin- 
cipal. Hefferman  v.  Botteler,  87  Mo.  App.  316;  Ortmeier  v. 
Ivory,  208  111.  577,  70  N.  E.  665.  See  also  Sees.  257,  352,  356, 
566. 

Sec.  255a.  Broker  to  procure  a  loan  on  land  may  purchase 
latter  at  mortgage  sale. 

Where  a  broker  was  employed  to  secure  a  loan  to  enable  the 
principal  to  prevent  a  mortgage  foreclosure  sale,  but  failed  to 
procure  the  loan,  the  relation  did  not  prevent  a  purchase  by  him, 
in  good  faith,  at  the  mortgage  sale,  nor  raise  a  constructive  trust 
for  the  principal  on  such  a  purchase.  Clark  v.  Delano,  91  N.  E. 
299,  205  Mass.  224,  29  L.  R.  A.  (N.  S.)  595. 

Sec.  255b.  Borrower  entitled  to  cancellation  of  note  and 
mortgage  where  lender  paid  broker,  who  converted  the 
money  to  his  own  use. 

Where  a  lender  negligently  paid  the  draft  of  a  broker  employed 
to  procure  a  loan,  the  proceeds  of  which  were  converted  to  the 
broker's  own  use,  the  borrower  was  entitled  to  a  cancellation  of 
his  note  and  mortgage.  Robinson  v.  Citizens'  Trust  Co.,  172  S. 
W.  1160,  187  Mo.  App.  51. 

Sec.  256.  Circumstances  held  to  show  broker  the  agent  of 
lender,  and  not  of  borrower. 

Where  a  principal  loans  money  to  a  large  number  of  bor- 
rowers, through  an  agent,  and  the  latter  by  agreement  takes 


LOANS  ON  EEAL  ESTATE.  213 

all  loans  payable  to  himself  and  indorses  the  notes  to  the 
lender,  and  draws  sight  drafts  for  the  amounts  needed,  and 
is  intrusted  with  the  care,  renewal  and  collection  of  such  loans, 
the  lender  is  not  a  bona  fide  holder  of  negotiable  paper,  and 
payment  to  the  agent  is  payment  to  the  principal.  Cheshire 
Prov.  Inst.  v.  Fuesner,  63  Neb.  682,  88  N.  W.  849;  Harrison 
Nat.  Bk.  v.  Austin,  65  Neb.  632,  89  N.  W.  245 ;  Holt  v.  Schnei- 
der, 57  Neb.  523,  77  N.  W.  1086;  Hiblard  v.  Ford,  155  P.  510, 
—  Okl.  Sup.  — . 

Sec.  256a.    Where  casual  connection  of  broker  with  sale  en- 
titled him  to  agreed  commission. 

If  the  services  of  a  broker  had  a  casual  connection  to  a  sale 
and  purchase  of  land  after  direct  negotiations  between  the  parties, 
he  is  not  debarred  from  recovering  an  agreed  commission  because 
the  negotiations  were  not  continuous,  nor  by  the  mere  lapse  of 
time  before  the  sale  was  consummated,  nor  by  the  fact  that,  in 
the  meantime,  the  seller  had  given  options  to  others.  Cleveland 
Cliffs  Iron  Co.  v.  Gamble,  201  F.  339,  119  C.  C.  A.  567. 

Sec.  257.    Securities  made  payable  at  office  of  loan  company 

do  not  make  it  agent  to  collect. 

That  a  purchaser  of  negotiable  mortgage  securities,  which 
are  made  payable  at  the  office  of  the  loan  company  negotiat- 
ing them,  knows  that  the  loan  company  solicits  payment  of 
them  regularly  as  they  fall  due,  and  that  it  interests  itself  in 
the  payment  of  taxes  and  insurance  to  protect  the  security, 
does  not  make  such  loan  company  his  agent  to  collect,  nor 
charge  him  with  the  moneys  so  obtained,  where  he  has  no 
knowledge  of  any  claim  of  authority  from  him  or  of  owner- 
ship of  the  securities,  and  he  retains  possession  of  them,  and 
places  them  in  the  hands  of  another  agent  with  instructions 
to  formally  demand  payment.  Bradbury  v.  Kinney,  63  Neb. 
754,  89  N.  W.  257.  See  also  Sees.  255,  352,  356,  566. 

Sec.  257a.    Failure  of  borrower  to  raise  additional  money  to 
get  loan  barred  broker  of  commission. 

Where  prospective  lender  offered  to  make  loan  for  erection  of 
building  if  borrower  would  raise  an  additional  amount.  Her  in- 


214  AMEKICAN   LAW   REAL   ESTATE   AGENCY. 

ability  to  do  this;  held,  not  to  entitle  a  broker  to  a  commission 
for  procuring  a  loan.  Cameron  v.  Ayres,  166  P.  801,  -  -  Cal. 
Sup.  — . 

Sec.  257b.    First  of  several  brokers  who  secured  accepted  loan 
entitled  to  the  commission. 

Where  a  person  employs  several  brokers  to  negotiate  a  loan, 
the  employer,  provided  he  remains  neutral  toward  the  several 
brokers,  is  liable  only  for  a  commission  to  the  one  who  first  ne- 
gotiates the  loan ;  or,  if  he  has  not  delegated  the  authority  to 
conclude  the  transaction,  to  the  one  who  first  produces  a  person, 
able,  ready  and  willing  to  lend  on  terms  agreeable  to  the  em- 
ployer, and  this  without  any  express  contract  to  that  effect. 
Hendricks  v.  CoW,  175  N.  W.  225,  —  Mich  Sup.  — . 


CHAPTER  VI. 

SECTION.  SECTION. 

258-275.     Mortgages.  282.  Building  materials,  build- 

276-281.     Bonds.  ing    contract — Builder's 

loan. 
283-289a.  Liens. 

Sec.  258.    Purchaser  bound  by  agent's  knowledge  and  can  nof 

dispute  mortgagee's  right  to  reform  mortgage. 
A  broker  who  is  employed  by  an  owner  of  land  to  find  a 
purchaser  therefor  and  is  paid  a  commission  for  his  services 
may,  after  the  conclusion  of  the  contract  of  sale,  lawfully  be- 
come the  agent  of  the  purchaser,  to  pass  on  the  title,  pay  the 
price,  and  receive  the  deed  for  the  purchaser,  if  the  purchaser 
has  knowledge  of  his  former  relations  to  the  vendor;  hence, 
knowledge  acquired  by  the  broker  before  the  contract  of  sale 
was  closed  that  an  outstanding  mortgage  executed  by  the  ven- 
dor was  intended  by  the  parties  thereto  to  cover  the  land  em- 
braced in  the  contract  of  sale,  but  through  a  mistake  of  the 
scrivener  a  different  tract  was  described  therein,  was  charge- 
able to  the  purchaser,  and  estopped  him  from  disputing  the 
mortgagee's  right  to  have  the  mortgage  reformed,  and  enforced 
against  the  land  intended  to  be  covered  by  it.  Vercruyse  v. 
Williams,  112  Fed.  206,  50  C.  C.  A.  486 ;  Dormitzer  v.  German 
Sav.  &  Loan  Soc.,  23  Wash.  132,  62  P.  862.  See  also  Sec.  844. 

Sec.  259.    Broker  selling  under  power  in  a  mortgage  commits 
no  breach  in  not  notifying  mortgagor  of  proposed  sale. 

A  mortgage  note  was  given  by  the  mortgagee  to  a  real  es- 
tate broker  for  collection,  and  the  mortgagor  also  placed  the 
land  in  his  hands  for  private  sale;  a  private  sale  which  the 
broker  attempted  to  make  having  failed,  on  acount  of  a  defect 
in  the  title,  and  the  mortgagor  having  ceased  to  trust  or  rely 
on  the  broker,  the  latter  had  the  property  sold  under  a  power 
in  the  mortgage,  without  notifying  the  mortgagor,  and  it  was 

215 


216  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

bought  by  a  third  person  who  had  no  privity  with  the  broker. 
Held,  that  the  broker  was  not  guilty  of  a  breach  of  trust.  Ritchie 
v.  Judd,  137  111.  453,  27  N.  E.  682. 

Sec.  259a.    Act  constituting  breach  of  agency  contract. 

Where  a  party  under  a  contract  is  to  secure  for  a  second  party 
options  on  certain  properties,  and  the  second  party  directs  him 
not  to  proceed  with  reference  to  securing  options  on  one  of  the 
properties,  this  is  a  breach  of  the  contract  for  which  the  second 
party  is  liable  for  damages.  Worthington  v.  McGarry,  42  S.  988, 
149  Ala.  251. 

Sec.  259b.    Landowner's  refusal  to  fix  date  of  public  sale  of 
land  not  a  breach  of  broker's  contract. 

A  landowner's  refusal  to  name  the  day  for  a  public  sale  of 
land  which  a  broker  had  contracted  to  develop  and  sell  at  public 
or  private  sale  within  a  year;  held,  not  to  constitute  a  breach  of 
the  broker's  contract  of  employment.  Phillips  v.  Troutman,  197 
P.  990,  117  C.  C.  A.  666. 

Sec.  260.    Broker  liable  for  loss  through  failing  to  record 

mortgage. 

To  an  action  against  a  broker  employed  to  sell  a  dairy  for 
damages  sustained  by  the  plaintiff  through  the  broker's  fail- 
ure to  record,  in  accordance  with  his  undertaking,  a  mortgage 
taken  by  him  from  a  purchaser  of  the  dairy  securing  the  lat- 
ter's  notes,  which  were  assumed  by  a  subsequent  purchaser 
of  the  dairy  from  him,  who  afterwards  conveyed  it,  and  who, 
as  well  as  the  first  purchaser,  is  insolvent,  it  is  no  defense  that 
the  dairy,  when  sold  by  the  first  to  the  second  purchaser,  was 
still  unincumbered,  and  that  plaintiff  rejected  an  offer  by 
the  first  purchaser  to  transfer  the  dairy  to  him  in  satisfac- 
tion of  the  amount  due  him.  Stewart  v.  Muse,  62  Ind.  385. 
See  also  Sec.  349. 

Sec.  261.    Broker  liable  for  loss  from  unpaid  mortgage,  where 

he  undertook  to  examine  the  title. 

In  an  action  against  a  real  estate  agent  for  failure  to  ex- 
amine the  title  of  land  purchased  by  him  for  plaintiff,  a  com- 


MOBTGAGES,  BONDS,  LIENS.  217 

plaint  alleging  that  the  grantor  had  mortgaged  the  land  con- 
veyed and  other  land,  and  that  the  mortgages  had  been  fore- 
closed and  the  land  in  question  sold,  without  showing  whether 
the  grantor  was  not  still  the  owner  of  the  other  land  mortgaged 
and  that  it  was  not  worth  more  than  the  mortgage  debt,  or 
that  plaintiff  applied  for  an  order,  in  the  decree  for  fore- 
closure, that  such  land  be  first  sold,  is  demurrable.  Sears  v. 
Forbes,  122  Ind.  358,  23  N.  E.  773. 

An  agent  who  had  no  knowledge  of  the  mortgage,  and  had 
not  agreed  to  examine  the  title  is  not  liable  to  the  purchaser 
for  loss  occasioned  by  the  existence  of  the  mortgage.  Id.  See 
also  Sec.  349. 

Sec.  262.    Broker  not  entitled  to  charge  expenses  of  foreclosing 

mortgage  to  principal. 

A  real  estate  broker  made  loans  in  his  principal's  name,  and 
to  secure  his  commissions  took  second  mortgages  in  his  own 
name,  and  at  sales  thereunder  bid  in  the  property,  and  there- 
after, without  the  knowledge  of  his  principal,  quit-claimed  to 
her  the  lands  so  acquired,  the  deeds  being  placed  among  her 
papers  in  his  possession.  Held,  that,  in  the  absence  of  ratifi- 
cation and  acceptance  of  the  deeds,  the  broker  was  not  en- 
titled to  credit  for  his  expenses  of  foreclosures  under  the  sec- 
ond mortgages  and  for  taxes  paid  without  the  principal's 
knowledge,  on  the  theory  that  such  expenditures  inured  to  her 
benefit.  Carpenter  v.  Monsen,  92  Wis.  449,  65  N.  W.  1027, 
66  N.  W.  692. 

Sec.  263.    Power  to  sell  does  not  include  power  to  mortgage. 

A  power  to  sell  land  does  not  include  power  to  mortgage. 
Stronghill  v.  Anstey,  1  De  Gex,  M.  &  Gr.  (Eng.)  635;  Payn  v. 
Cooper,  16  Beavan  (Eng.),  396;  Halderby  v.  Spofford,  1  Beavan 
(Eng.),  390;  Jeffray  v.  Hurst,  49  Mich.  31;  Contant  v.  Ser- 
voss,  3  Barb.  (N.  Y.)  128;  Russell  v.  Russell,  36  N.  Y.  581; 
Bloomer  v.  Waldron,  3  Hill  (N.  Y.),  361;  Taylor  v.  Galloway, 
1  Ohio,  232. 

A  power  to  sell  and  convey  does  not,  as  a  general  rule,  con- 
fer a  power  to  mortgage,  and  a  mortgage  executed  under  a 


218  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

power  of  attorney  authorizing  the  attorney  to  sell  and  convey 
is  void.    Morris  v.  Watson,  15  Minn.  212.     See  also  Sec.  266. 

Sec.  264.  Agent  to  invest  money  confined  to  first  mortgages. 
An  agent  employed  to  invest  money  on  mortgage  security, 
can  not  invest  in  a  second  mortgage,  without  the  express  con- 
sent of  his  principal,  and  if  he  does  will  be  liable  for  negli- 
gence. Whitney  v.  Martine,  6  Abb.  (N.  Y.)  N.  Cases,  72. 

Sec.  265.    Broker  making  loan,  knowing  of  prior  mortgage, 
principal's  subordinated  thereto. 

Where  an  agent  makes  a  loan  on  mortgage,  with  knowledge 
of  the  fact  that  a  prior  unrecorded  mortgage  on  the  same  prop- 
erty exists,  taken  by  him  as  agent  for  another  person,  his  prin- 
cipal in  the  second  transaction  takes  charged  with  the  knowl- 
edge of  the  agent,  and  can  not  enforce  such  second  mortgage 
as  against  the  prior  unrecorded  mortgage.  Constant  v.  Roches- 
ter Univ.,  17  N.  Y.  S.  363.  (In  the  States  of  Arkansas,  North 
Carolina  and  Ohio  mortgages  take  precedence  solely  by  prior- 
ity of  record,  or  notice  in  previous  recorded  conveyance  of 
an  unrecorded  trust  deed.)  Jones  on  Mortgages  Sec.  539. 

Sec.  266.    Power  to  purchase  gives  none  to  secure  purchase 

money  by  mortgage. 

An  agent  employed  to  purchase  property  with  particular 
funds  has  no  authority  to  mortgage  the  property  to  secure 
the  purchase  money,  and  such  mortgage  will  not  bind  the  prop- 
erty. Fraser  v.  McPherson,  3  Desau.  (S.  C.),  393.  See  also 
Sec.  263. 

Sec.  267.    Whether  agent  taking  mortgage  with  wrong  de- 
scription was  guilty  of  negligence,  a  question  for  the  jury. 
In  an  action  by  a  principal  against  an  agent  for  negligence 
in  procuring  a  mortgage  to  be  executed  in  her  favor,  in  which 
the  land  was  wrongly  described.     Held,  that  it  should  be  left 
to  the  jury  to  say  whether  the  plaintiif  was  guilty  of  con- 
tributory negligence  is  not  discovering  the  mistake,  which  was 
patent  upon  the  face  of  the  mortgage.     Munford  v.  Miller,  7 
111.  App.  62. 


MOBTGAGES,  BONDS,   LIENS.  219 

Sec.  268.    Mortgage  taken  by  lender,  bound  by  fraud  of  agent, 

and  instrument  set  aside. 

A  guardian,  by  fraudulent  proceedings  in  court,  obtained 
an  order  and  sold  property  inherited  by  his  ward,  and  his 
vendee,  who  participated  in  the  fraud,  afterwards  mortgaged 
the  property  to  secure  a  large  loan;  the  mortgage  was  made 
through  a  broker,  and  the  mortgagee  testified  that  the  broker 
was  defendant's  agent  for  the  service  of  process  and  for  no 
other  purpose,  and  that  defendant  dealt  with  him  as  with  other 
brokers;  the  broker  passed  on  the  value  of  the  securities,  fixed 
the  terms  of  the  loans,  subject  to  the  mortgagee's  approval, 
looked  after  the  titles,  employed  attorneys  to  examine  the  same, 
received  the  money  and  paid  it  to  the  mortgagors,  and  in  let- 
ters to  the  mortgagee  spoke  of  the  loans  as  made  "by  us;" 
in  negotiating  the  loan  in  question  he  was  associated  with  a 
third  person,  and  attorneys  were  employed  by  them  who  knew  of 
such  fraudulent  probate  proceedings,  and  that  the  proceedings 
were  made  for  the  purpose  of  showing  a  clear  title  to  the  mort- 
gaged property.  Held,  sufficient  to  show  that  the  broker  was 
the  agent  of  the  mortgagee  so  as  to  make  notice  of  the  fraud  to 
him  sufficient  notice  to  the  mortgagee  to  prevent  the  defense 
of  good  faith  by  it  to  an  action  by  the  ward  to  set  aside  such 
sale  and  mortgage  as  fraudulent.  Dormitzer  v.  German  Sav. 
&  Loan  Soc.,  23  Wash.  132,  62  P.  862;  Vercruyse  v.  Williams, 
112  Fed.  206,  50  C.  C.  A.  486. 

Sec.  269.    Payment  on  mortgage  by  purchaser  to  seller's  agent, 

did  not  bind  mortgagee. 

Complainant  purchased  through  a  real  estate  agent  prop- 
erty subject  to  a  mortgage;  subsequently  respondent  took  an 
assignment  of  the  mortgage  which  he  failed  to  record;  there- 
after complainant  made  payments  on  the  mortgage  to  the 
agent,  without  asking  to  see  the  mortgage  or  mortgage  note, 
he  assuming  that  the  agent  was  the  agent  of  the  holder  of 
the  mortgage;  the  agent  was  not,  in  fact,  employed  by  re- 
spondent, and  did  not  account  to  him  for  the  payments  made 
by  complainant  on  the  mortgage,  except  by  paying  interest, 
in  doing  which  he  represented  that  he  was  acting  for  com- 
plainant. Held,  that  there  was  no  evidence  of  the  real  estate 


220  AMERICAN   LAW   EEAL   ESTATE   AGENCY. 

agent's  capacity  as  agent  for  respondent,  so  as  to  charge  re- 
spondent with  the  receipt  of  the  unaccounted  for  payments 
made  by  complainant.  Ward  v.  Trustees,  27  R.  I.  262,  61  A. 
651;  Ortmeier  v.  Ivory,  208  111.  577,  70  N.  E.  665;  Henken  v. 
Schwicker,  73  N.  Y.  S.  656,  67  App.  Div.  196,  174  N.  Y.  298. 

Sec.  270.    Broker  liable  for  negligence  in  failing  to  learn  lia- 
bility under  a  mortgage. 

A  real  estate  broker  contracted  for  his  principal  to  pur- 
chase land  for  a  certain  amount  and  assume  the  incumbrance 
as  part  of  the  consideration;  the  record  of  the  mortgage  on 
the  land,  while  showing  the  rate  of  interest  ordinarily  borne 
by  the  notes  secured  by  the  mortgage,  did  not  show  that  past 
due  notes  and  installments  of  interest  bore  an  increased  rate 
of  interest;  the  broker  did  not  ascertain  this  fact  and  over- 
paid the  vendor  in  consequence.  Held,  that  the  broker  was 
guilty  of  negligence  rendering  him  liable  for  the  overpayment. 
Hindricks  v.  Brady  (S.  D.  Sup.  '06),  108  N.  W.  332;  reversed 
and  modified  Sec.  270a. 

Sec.  270a.    Broker  held  liable  only  for  failure  to  collect  for 
purchaser  interest  due  as  shown  by  the  record. 

A  broker  contracted  for  his  principal  to  purchase  land  for 
a  certain  amount.  There  was  a  mortgage  upon  the  land  to 
secure  several  notes.  The  record  definitely  stated  the  rate  of 
interest  borne  by  the  notes  to  be  six  per  cent,  per  annum;  but 
did  not  show  that  past  due  notes  and  installments  of  interest 
bore  an  increased  rate  of  interest.  The  broker  did  not  ascer- 
tain this  fact,  and  failed  to  investigate,  as  requested  by  the 
principal,  to  see  that  one  of  the  notes  had  been  paid.  The 
principal,  going  on  the  assumption  that  the  one  note  had  been 
paid,  and  that  this  bore  only  six  per  cent,  interest,  overpaid  for 
the  land,  and  sought  to  recover  from  the  broker.  Held,  that  the 
broker  had  a  right  to  rely  upon  the  recitals  of  the  record, 
which  definitely  stated  the  rate  of  interest,  as  had  the  prin- 
cipal, who  could  not  be  held  for  the  higher  rate,  and  hence 
there  could  be  no  recovery  from  the  broker  for  payments  of 
interest  in  excess  of  that  rate.  Judgment,  20  S.  D.  509,  108 
N.  W.  332,  reversed  on  rehearing.  Hinrichs  v.  Brady  (S.  D. 
Sup.  '09),  121  N.  W.  777. 


MORTGAGES,   BONDS,  LIENS.  221 

Sec.  271.    Broker  liable  for  negligence  for  loss  in  taking  mort- 
gage on  other  and  not  on  land  sold. 

A  mortgage  for  $1,200  taken  by  real  estate  brokers  as  se- 
curity for  the  price  of  property  sold  by  them,  was  on  prop- 
erty valued  at  $2,300,  on  which  there  was  a  first  mortgage 
for  $1,800,  no  security  was  taken  by  the  brokers  on  the  prop- 
erty sold,  and  the  purchaser  became  insolvent  in  about  three 
months  after  the  sale.  Held,  sufficient  to  sustain  a  finding 
that  the  broker  was  negligent  in  regard  to  the  security.  Har- 
low  v.  Bartlett,  170  Mass.  584,  49  N.  E.  1014.  See  also  Sec. 
349. 

Sec.  271a.    Broker  liable  in  damages  for  assuring  responsi- 
bility of  irresponsible  lessee. 

Where  plaintiff  relied  on  defendant  agent's  assurance  that  the 
purchaser  of  the  plaintiff's  leasehold  interest  would  pay  a  bonus, 
so  that  the  tenant  would  be  safe  in  moving  out,  the  liability  of 
defendant  to  plaintiff  is  not  the  amount  the  purchaser  of  the 
lease  would  have  paid  had  he  performed,  but  is  the  loss  occa- 
sioned plaintiff  by  defendant  agent's  wrongful  or  negligent  act 
in  giving  the  assurance.  Western  Bakeries  v.  John  Davis  &  Co., 
188  P.  406,  —  Wash.  Sup.  — . 

Sec.  272.    Broker  securing  conditional  sale  of  mortgage,  not 
consummated,  did  not  earn  commissions. 

Where  a  broker  employed  to  sell  the  note  and  mortgage 
given  by  a  cemetery  association  for  money  used  to  purchase 
real  estate  described  in  the  mortgage,  obtained  a  purchaser  on 
condition  that  the  tetter's  conveyancer  was  satisfied  with  the 
mortgage,  and  the  sale  was  not  consummated  because  said  con- 
veyancer refused  to  approve  the  same,  defendants  being  at  all 
times  ready  to  assign  the  note  and  mortgage  to  the  purchaser 
procured,  plaintiff  was  not  entitled  to  recover  commissions. 
Wiggen  v.  HolbrooTc,  190  Mass.  157,  76  N.  E.  463;  Sugarman  v. 
Kearns,  146  N".  Y.  Sup.  192,  84  Misc.  Sep.  450.  See  also  Sees. 
119,  193,  224,  449.  Shapiro  v.  Nadler,  99  1ST.  Y.  S.  879,  51 
Misc.  13. 


222  AMERICAN  LAW   BEAL  ESTATE  AGENCY. 

Sec.  273.    Fraud  of  agent  in  appropriating  money  received  to 

pay  off  mortgages. 

Defendant  applied  to  a  real  estate  agent  for  a  mortgage 
loan;  three  unsatisfied  mortgages  were  to  be  paid  with  the  pro- 
ceeds of  the  loan;  plaintiff  agreed  with  the  agent  to  make  the 
loan,  and  gave  the  agent  a  check  for  the  amount,  taking  a 
mortgage  on  the  property,  the  agent  assuring  him  that  he 
would  search  the  title  and  see  that  plaintiff  had  a  first  mort- 
gage, but  not  informing  him  of  the  outstanding  incumbrances ; 
on  execution  of  the  mortgage  defendant  instructed  the  agent 
to  pay  off  the  three  outstanding  mortgages  with  a  part  of  the 
money  in  his  possession;  the  agent  paid  off  one  of  the  three 
mortgages  only  and  appropriated  the  rest  of  the  money.  Held, 
that  the  payment  of  the  amount  of  the  loan  to  the  agent  was 
a  payment  to  him  as  agent  of  the  defendant.  Henker  v. 
Schwicker,  73  N.  Y.  S.  656,  67  App.  Div.  196,  174  N.  Y.  298. 
See  also  Sec.  269. 

Sec.  274.    Failure  of  purchaser  to  execute  mortgage  defeated 

broker's  right  to  commissions. 

A  contract  for  the  purchase  of  real  estate  provided  that 
the  same  should  be  void,  at  the  will  of  the  vendor,  if  default 
should  be  made  by  the  vendee  in  completing  the  purchase  by 
making  the  due  cash  payments  and  executing  a  mortgage  for 
the  balance  of  the  purchase  money,  time  being  of  the  essence 
of  the  contract,  $500  cash  paid  upon  its  execution  to  be  for- 
feited to  the  vendor;  a  commission  contract,  executed  at  the 
same  time,  provided  that  the  vendor  would  pay  the  broker 
$2,500  commissions  if  the  contract  of  purchase  should  be  per- 
formed by  making  the  payments  and  executing  the  mortgage 
as  provided.  Held,  that  the  vendee  having  failed  to  make  the 
deferred  cash  payments  and  to  execute  the  mortgage,  the  vendor 
having  been  ready,  willing  and  able  to  perform  the  contract  until 
such  default,  could  take  advantage  thereof,  cancel  the  contract, 
and  remove  the  cloud  from  the  record  by  appropriate  legal  pro- 
ceedings; under  such  circumstances  commissions  are  not  earned. 
Van  Norman  v.  Fitchette,  100  Minn.  145,  110  N.  W.  851.  See 
also  Sec.  179. 


MORTGAGES,  BONDS,  LIENS.  223 

Sec.  274a.    Sale  of  land  by  mortgagee  not  withdrawal  con. 
templated  in  contract  with  broker. 

Where  owner  of  land  agreed  with  a  broker  to  pay  withdrawal 
fee  if  he  withdrew  the  land  from  the  broker's  hands  before  a 
purchaser  was  procured;  held,  that  a  sale  of  the  land  by  the 
mortgagee  for  breach  of  condition  was  not  such  a  withdrawal. 
E.  A.  Strout  Farm  Agency  v.  McTeer,  88  A.  411,  111  Me.  169. 

Sec.  274b.    When  mortgage  given,  owner  entitled  to  know 
who  purchaser  was. 

Where  the  terms  negotiated  by  the  broker  called  for  the  giving 
of  a  mortgage  for  one-half  of  the  price,  the  employer  was  entitled 
to  know  who  the  purchaser  was.  Coppage  v.  Howard,  96  A.  642, 
127  Md.  512. 

Sec.  275.    In  computing  commissions  mortgage  treated  as  part 

of  purchase  price. 

Defendant  was  the  owner  of  certain  land  on  which  there 
was  a  mortgage,  for  the  payment  of  which  he  was  not  person- 
ally bound,  and  he  gave  plaintiff  the  exclusive  sale  of  the  land 
for  sixty  days,  and  one-half  of  all  moneys  obtained  on  the 
sale  thereof  over  $20  per  acre,  less  $455;  plaintiff  procured 
a  purchaser  to  whom  the  defendant  conveyed  the  land  sub- 
ject to  the  mortgage  which  the  purchaser  did  not  assume. 
Held,  that  in  determining  plaintiff's  compensation  the  amount 
of  the  mortgage  must  be  taken  as  a  part  of  the  purchase  price. 
Holart  v.  Stewart,  99  Minn.  394,  109  N.  W.  704.  See  also 
Sees.  376,  369. 

Sec.  275a.    When  mortgage  should  not  be  added  to  increase 
broker's  commission. 

Where  property  is  listed  with  real  estate  broker  for  sale  for  a 
stated  amount,  which  included  an  existing  mortgage,  the  commis- 
sion, unless  for  some  special  reason  to  the  contrary,  should  be 
based  on  a  sale  for  this  amount;  but  where,  in  order  to  promote 
the  sale,  money  for  improving  the  properties  is  raised  by  a  mort- 
gage, executed  by  the  owner  and  guaranteed  by  the  buyer,  who 


224  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

assumes  its  payment,  the  commission  should  not  be  increased  on 
that  account,  unless  an  agreement  to  that  effect  may  be  implied 
from  other  circumstances.  Fuller  v.  Preston,  191  P.  493,  —  Kan. 
Sup.  — . 

Sec.  276.    Declaring  bonds  illegal  deprived  brokers  of  com- 
missions for  negotiating  sale. 

Plaintiff  entered  into  an  agreement  with  defendant  who 
had  agreed  to  take  certain  county  bonds  at  par  in  payment 
of  any  county  work  which  he  had  contracted  to  do,  to  sell  the 
bonds,  his  commissions  to  be  deducted  from  the  second  pay- 
ment of  money  realized  from  the  sale;  plaintiff  obtained  a 
purchaser  who  was  willing,  able  and  ready  to  purchase  the 
bonds,  but  before  the  second  block  was  delivered  the  issue  was 
declared  illegal,  their  delivery  perpetually  enjoined,  and  the 
purchaser  secured  by  the  plaintiff  never  paid  for  the  block 
delivered.  Held,  that  the  plaintiff  was  not  entitled  to  any 
commissions  for  securing  a  purchaser,  as  no  second  payment 
was  ever  made.  Owen  v.  Ramsey,  23  Ind.  App.  285,  55  N.  E. 
247. 

Sec.  277.    Broker  selling  bonds  entitled  to  commissions  on 
procuring  party  ready  to  buy  on  terms  specified. 

A  broker  employed  to  sell  bonds  is  entitled  to  compensation 
upon  producing  a  party  ready,  willing  and  able  to  buy  on  the 
terms  specified  by  the  vendor,  although  the  sale  is  not  consum- 
mated, where  the  broker  is  without  fault.  Thompson  v.  City  of 
Sea  Isle,  58  N.  Y.  S.  203,  27  Misc.  834;  Butterfield  v.  Con.  Fuel 
Co.,  132  P.  559,  42  Utah,  499 ;  Shea  Realty  Corp.  v.  Page  &  Tay- 
lor, 69  S.  E.  327,  111  Va.  490;  Smith  v.  Lyons  Salt.  Co.,  177  S. 
W.  1057,  —  Mo.  App.  — ;  Ely  v.  Wilde,  122  P.  122,  62  Or.  111. 

Sec.  277a.     Broker  who  ceased  efforts  not  entitled  to  com, 
mission  on  bonds  sold  by  another. 

Broker  not  entitled  to  commission  for  the  sale  of  bonds,  who 
ceased  his  efforts  and  transaction  was  closed  by  another.  Ely  v. 
Wilde,  122  P.  1122,  62  Or.  111. 


MORTGAGES,  BONDS,  LIENS.  225 

Sec.  277b.    Broker  not  entitled  to  commission  on  bonds  sold 
to  his  customer  after  his  agency  ended. 

Broker  not  entitled  to  commissions  for  sale  of  bonds,  after  his 
authority  terminated,  by  the  owner  to  purchaser  procured  by 
broker.  Butterfield  v.  Consolidated  Fuel  Co.,  132  P.  559,  42 
Utah,  499;  Brown  v.  Northampton-Boston  &  W.  Traction  Co., 
200  F.  897,  119  C.  C.  A.  193. 

Sec.  278.    Broker  not  entitled  to  compensation  for  sale  of 
bonds  where  purchaser  withdrew  conditional  acceptance. 

Above  case  afterwards  reversed,  on  the  ground  that  the  broker 
who  was  promised  a  commission  to  be  paid  on  completion  of  the 
sale,  was  not  entitled  thereto  where  the  purchaser  whom  he  fur- 
nished withdrew  a  conditional  acceptance  of  the  bonds  offered. 
Thompson  v.  City  of  Sea  Isle,  59  N.  Y.  S.  596,  28  Misc.  494; 
Sinter  v.  American  Palace  Car  Co.,  131  N".  Y.  Sup.  17,  146  App. 
Div.  859,  954;  Neuhart  v.  Geo.  K.  Porter  Co.,  138  P.  951,  23 
Gal.  App.  526.  See  also  Sec.  556. 

Sec.  279.    Broker  transferring  bonds  by  delivery,  without  dis- 
closing principal,  liable  in  case  they  are  null  and  void. 

If  a  broker  or  other  agent  transfer  bonds  by  delivery,  without 
disclosing  who  is  his  principal,  he  is,  himself,  to  be  regarded  as 
the  principal,  and  is  responsible  to  refund  the  money  paid,  if  the 
bonds  are  declared  null  and  void.  Herwig  v.  Richardson,  44 
La.  Ann.  703,  11  So.  135.  Compare  Cooper  v.  Illinois  Central 
R.  Co.,  57  N.  Y.  S.  925,  38  App.  Div.  22.  See  also  Sec.  601. 

Sec.  280.     Broker  selling  bonds  in  good  faith  not  liable  to 
trust  estate  because  illegally  sold. 

Bonds  belonging  to  a  trust  estate  were  presented  to  certain 
brokers  at  a  time  when  they  were  registered  in  the  name  of  S, 
executor;  some  days  later,  when  left  with  them  for  sale,  they  had 
been  discharged  from  registry  and  were  payable  to  bearer;  it  did 
not  appear  that  the  brokers  had  any  knowledge  that  the  executor 
was  dead,  or  of  the  condition  of  the  estate  of  which  he  was  ex- 
ecutor. Held,  that,  on  a  sale  by  them  of  such  bonds  they  were 
not  liable  to  the  estate,  because  the  bonds  were  in  fact  a  part  of 


226  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

the  trust  fund  and  illegally  sold.  Cooper  v.  III.  Cent.  E.  Co.,  57 
IS.  Y.  S.  925,  38  App.  Div.  22.  Compare  Herwig  v.  Richardson, 
44  La.  Ann.  703,  11  So.  135.  See  also  Sec.  351. 

Sec.  281.    Authority  to  a  village  to  issue  bonds,  includes  au- 
thority to  employ  broker  to  dispose  of  them. 
Express  authority  of  a  village  to  borrow  money  and  issue 
bonds  therefor,  includes  implied  authority  to  employ  a  person 
to  procure  a  purchaser  for  the  bonds,  whether  he  be  a  broker 
or  not.    Armstrong  v.  Village  of  Ft.  Edwards,  159  N.  Y.  315, 
53  N.  E.  1116. 

Sec.  282.    Building  materials,  building  contract,  builder's  loan. 

In  an  action  against  a  real  estate  agent  to  compel  him  to 
convey  property  which  it  was  alleged  he  had  been  employed 
to  purchase  for  his  principal,  and  the  title  to  which  was  taken 
in  the  agent's  name  and  for  damages,  the  advance  which,  in 
the  meantime,  had  taken  place  in  the  price  of  building  mate- 
rial, was  held  too  remote  to  constitute  an  element  of  damages. 
'Harrison  v.  Craven,  188  Mo.  590,  87  S.  W.  962. 

A  broker  was  held  entitled  to  recover  compensation  for  fur- 
nishing information  in  consequence  of  which  a  builder  entered 
into  a  contract  for  the  erection  of  a  building.  Kaestner  v. 
Oldham,  102  111.  App.  372. 

Where  there  is  a  special  agreement  to  that  effect,  a  broker 
who  secures  a  responsible  purchaser,  who  buys  subject  to  a 
builder's  loan,  is  not  entitled  to  his  commissions  till  the  pur- 
chaser has  earned  his  first  payment;  i.  e.,  when  the  second  tier 
of  beams  is  laid.  Leitner  v.  Boehm,  56  N.  Y.  S.  227. 

Sec.  282a.    Broker  entitled  only  to  advances  where  sale  was 
made  by  owner's  manager. 

Where  plaintiff  was  to  receive  commissions  for  the  sale  of  de- 
fendant's property,  and  an  advancement  of  $20  per  week,  to  be 
credited  on  any  commissions  that  he  might  earn,  the  only  compen- 
sation to  which  he  was  entitled  for  showing  purchaser  over  the 
premises,  the  sale  being  subsequently  made  by  defendant's  man- 
ager, was  the  advances  to  which  plaintiff  was  entitled  regardless 


MORTGAGES,  BONDS,  LIENS.  227 

of  whether  he  made  the  sale.     Handy  v.  Pan  Cortlandt  Realty 
Co.,  140  N.  Y.  Sup.  1081,  156  App.  Div.  110. 

Sec.  283.    Broker  has  a  lien  on  securities  in  his  hands  for  his 
commissions. 

A  broker  is  entitled  to  a  lien  for  his  commissions  on  a  note 
and  mortgage  or  on  the  proceeds  thereof  left  in  his  possession 
to  negotiate  a  sale  thereof.  Peterson  v.  Hall,  61  Minn.  268,  63 
N.  W.  733 ;  Carpenter  v.  Monsen,  92  Wis.  449,  65  N.  W.  1027,  66 
N.  W.  692.  Contra,  State  Bank  v.  Cullen  (N.  D.  Sup.  '09),  121 
K  W.  85.  Compare  Sees.  285,  287. 

Sec.  283a.    Broker  required  to  surrender  collateral  to  secure 
commissions  on  revocation  of  authority. 

Where  plaintiff  had  revoked  agreement  to  pay  defendant  com- 
missions for  sale  of  property  of  a  corporation  controlled  by  him, 
after  revoking  agreement  by  the  corporation  to  pay  such  commis- 
sion; held,  not  to  entitle  defendant  to  hold  collateral  deposited 
by  plaintiff  as  security  for  commissions  on  a  future  sale.  Blais- 
dell  v.  Steinfeld,  137  P.  555,  15  Ariz.  155. 

Sec.  284.    A  loan  broker  has  a  lien  for  his  fees  on  funds  com- 
ing into  his  hands. 

A  broker  employed  to  obtain  a  loan  of  money  upon  a  commis- 
sion has  a  lien  for  his  fees  and  may  retain  them.  Vinton  v. 
Baldwin,  95  Ind.  433.  See  also  Sees.  285,  288. 

Sec.  284a.    Broker  denied  right  to  assert  lien  for  commission 
on  exchange  rescinded  for  fraud. 

If  broker  who  acted  as  agent  for  both  parties  to  a  real  estate 
exchange  transaction  was  a  party  to,  or  had  notice  of  the  fraud 
that  induced  the  consummation  of  the  transaction,  he  is  in  no 
position  to  assert  lien  for  commissions  on  one  of  the  tracts  of 
land  conveyed,  reserved  in  the  deed,  after  the  transaction  had 
been  rescinded  because  of  such  fraud,  though  rescission  did  not 
specifically  provide  for  the  cancellation  of  commission  notes. 
Speer  v.  Dalrymple,  222  S.  W.  174,  —  Tex.  Civ.  App.  — . 

If  broker  who  had  acted  as  agent  for  both  parties  to  real  es- 


228  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

tate  exchange  transaction  was  a  party  to  or  consented  to  rescis- 
sion of  transaction  on  the  ground  that  it  had  been  induced  by 
fraud,  he  could  not  enforce  the  lien  on  land  of  defrauded  party 
reserved  in  the  deed  by  which  the  land  was  conveyed.  Id. 

Sec.  285.    In  the  absence  of  a  contract  a  broker  has  no  lien  on 
funds  or  securities  of  his  principal. 

A  real  estate  broker  has  no  lien  for  services  on  a  certificate 
of  deposit  belonging  to  the  principal.  Robinson  v.  Stewart, 
97  Mich.  454,  56  N.  W.  853 ;  Arthur  v.  Sylvester,  105  Pa.  St 
233;  Jones'  Appeal,  80  Pa.  St.  54;  May  field  v.  Turner,  180 
111.  332,  54  N.  E.  418.  See  also  Sec.  373. 

However,  there  are  cases  upholding  the  broker's  right  to 
such  special  lien.  Richards  v.  Gaskell,  39  Kan.  428,  18  P. 
494;  Carpenter  v.  Monsen,  92  Wis.  449,  65  N.  W.  1027,  66 
N.  W.  692 ;  Vinton  v.  Baldwin,  95  Ind.  433 ;  Gerry  v.  Brumage, 
46  Ind.  59. 

Sec.  286.    Where  broker  has  a  lien  it  exists  only  so  long  as 
he  holds  the  property. 

The  equitable  lien  of  a  broker  exists  only  so  long  as  he 
has  possession  of  the  land  or  title  papers,  and  his  debt  re- 
mains unbarred  by  the  statute  of  limitations.  Byers  v.  Dan- 
ley,  27  Ark.  77. 

Sec.  287.    The  lien  of  a  broker  for  commissions  is  confined  to 
the  specific  securities  affected. 

A  real  estate  broker,  who  is  not  an  attorney-at-law,  can  not 
claim  a  general  lien  on  all  securities  in  his  possession  for  ex- 
penses incurred  in  managing  some  of  such  securities,  but  the 
lien  is  confined  to  the  specific  securities  for  which  the  expenses 
were  incurred.  Carpenter  v.  Monsen,  92  Wis.  449,  65  N.  W. 
1027,  66  N.  W.  692. 

Sec.  288.    A  broker  procuring  a  loan  for  a  trust  estate  has  no 

lien  thereon. 

In  the  absence  of  a  specific  agreement  a  broker  who  pro- 
cures a  loan  for  the  benefit  of  a  trust  estate  has  no  lien  on 


MORTGAGES,  BONDS,  LIENS.  229 

such  estate  for  his  commissions,  his  remedy  being  against  the 
trustee  personally.  Johnson  v.  Leman,  131  111.  609,  23  N.  B. 
£35.  Compare  Sees.  284,  285. 

Sec.  288a.  Instruction  that  if  broker  changed  contract  be- 
lieving defendant  would  see  before  signing,  not  prejudicial 
to  plaintiff. 

In  an  action  for  a  broker's  commissions,  an  instruction  that 
if  the  broker  caused  a  change  to  be  made  in  the  contract,  be- 
lieving the  defendant  would  see  the  change  when  the  contract 
was  delivered  to  him,  then  the  defense  of  fraud  on  the  part 
of  the  broker  in  so  changing  the  contract  was  not  sufficiently 
established  to  defeat  plaintiff's  claim  for  commissions,  was 
not  prejudicial  to  plaintiff.  Eobertson  v.  Vasey,  125  Iowa, 
526,  101  N.  W.  271. 

Sec.  289.    Where  a  broker  took  the  excess  for  commissions  the 

expenses  of  releasing  a  lien  fell  on  the  principal. 
A  real  estate  agent  employed  to  sell  land  was  to  have  all 
obtained  over  a  certain  price.  Held,  that  the  expense  of  get- 
ting rid  of  an  existing  lien  on  the  lands  must  be  borne  by 
the  principal,  not  by  the  agent.  Wisehart  v.  Deitz,  67  Iowa, 
121,  24  N.  W.  752. 

Sec.  289a.  Commissions  assumed  by  vendee  not  a  lien  on 
property. 

Where  a  commission  for  the  sale  of  real  estate  due  from  the 
vendor  to  the  agent  was  assumed  by  the  vendee  at  the  time  of 
purchase  without  an  agreement  to  that  effect,  the  debt  does  not 
become  a  lien  on  the  land.  May  field  v.  Turner,  130  111.  332, 
54  N.  E.  418. 

Sec.  289b.  Lien  of  broker  for  commission  on  purchaser's  in- 
terest not  enforcible  on  breach  by  latter. 

While  an  agreement  between  the  purchaser  and  the  vendor 
that  broker's  commission  should  be  paid  by  vendee  as  part  of 
purchase  price,  upon  first  payment,  and  giving  of  a  mortgage 
would  not  prevent  the  lien  of  broker  from  attaching  to  the 


230  AMERICAN  LAW  BEAL  ESTATE  AGENCY. 

vendee's  interest,  such  lien  could  not  be  enforced  on  breach  of 
vendee  before  the  mortgage  was  given.  Biddle  v.  Biddle,  168  N. 
W.  92,  202  Mich.  160. 

Sec.  289c.    What  plaintiff  must  show  to  enforce  lien  for  com- 
missions on  sale  of  land. 

In  order  to  enforce  a  lien  for  broker's  commission  on  a  sale 
of  certain  land,  where  the  notes  have  come  into  the  hands  of  a 
third  person,  plaintiff  must  show  that  he  has  an  equitable  lien 
thereon;  a  mere  promise  to  pay  out  of  a  designated  fund  does 
not  give  such  lien.  Battery  Place  Commercial  Corp.  v.  Willis, 
173  K  Y.  Sup.  772,  183  App.  Div.  569. 


PART  III. 

RIGHTS,  DUTIES  AND  LIABILITIES 
OF  PRINCIPAL  AND  AGENT. 


231 


SECTION.  SECTION. 

290.  Duty  or  obligation  of  an  agent      293.    Alterations   made   in  written 

to  his  employer  or  others.  instruments. 

291.  Concealment     and    its    effect      294.     Adverse  interests. 

upon  rights.  295.     Betrayal  of  trust. 

292.  Abandonment  of  employment,      296.     Collusion. 

and    of    contract    by    pur- 
chaser. 

Sec.  290.  Duty  or  obligation  of  an  agent  to  his  employer  and 
others. 

A  breach  of  duty  to  his  principal  deprives  a  broker  of  his 
right  to  commissions.  Wilkinson  v.  McCullough,  196  Pa.  St. 
205,  79  Am.  St.  R.  702,  46  A.  357;  Alford  v.  Creagh,  62  S.  254, 
7  Ala.  App.  358;  Slagle  v.  Russell,  80  A.  164,  114  Md.  418; 
Pugh  v.  Christensen,  165  N.  W.  294,  —  Wis.  Sup.  — .  Where  a 
broker,  on  his  principal  refusing  to  sign  a  contract  of  sale,  him- 
self signs  it  and  puts  it  on  record,  this  is  a  breach  of  duty  and 
deprives  the  broker  of  his  right  to  recover  commissions.  Lease  v. 
Christy,  28  Pa.  Super.  Ct.  507.  See  also  Sec.  514.  A  broker  en- 
deavoring to  sell  land  is  bound  to  communicate  to  his  principal 
the  real  facts  and  true  situation  with  reference  to  a  proposed  pur- 
chase of  the  property.  Raleigh,  R.  E.  &  T.  Go.  v.  Adams,  145 
K  C.  161,  58  S.  E.  1008;  Harten  v.  Loeffler,  31  App.  (D.  C.) 
362;  Lord  v.  Wapato  Inv.  Co.,  142  P.  1172,  81  Wash.  561,  aff.  on 
re.  152  P.  329,  84  Wash.  696 ;  Bassick  v.  Aetna  Exp.  Co.,  246  F. 
974;  WheelocTc  v.  Zevitas,  118  N.  E.  279,  229  Mass.  176. 

An  agent  having  authority  to  sell,  as  a  whole,  both  real  and 
personal  property  at  a  fixed  sum,  can  not,  without  the  consent 
of  his  principal,  take  to  himself  the  personal  property  on  re- 
ceiving the  authorized  sum  from  the  purchaser  for  the  real 
estate.  Northup  v.  Bathrick,  80  Neb.  36,  113  N.  W.  808. 
Ordinarily  it  is  not  the  broker's  duty  to  see  that  the  vendor 
has  a  good  title,  or  that  he  enters  into  an  enforceable  con- 

B33 


234  AMERICAN  LAW  REAL   ESTATE  AGENCY. 

tract.  King  v.  Enowles,  106  N.  Y.  S.  760,  122  App.  Div.  414; 
Corbin  v.  Her.  &  Trad.  Bank,  106  N.  Y.  S.  573,  121  A.  D.  744. 

"Where  an  agent,  with  authority  to  sell  his  principal's  land, 
reports  to  another  agent  of  the  principal  that  he  can  sell  so 
as  to  net  the  principal  a  certain  sum,  and  that  he  is  selling  for  a 
greater  sum  and  will  retain  the  excess  as  commissions,  and  no  con- 
tract is  shown  that  he  shall  receive  any  specified  amount  for  his 
services,  the  agent  commits  no  fraud  by  failing  to  disclose  such 
amount.  Deming  Inv.  Co.  v.  Meyer  (Okla.  Sup.  '07),  91  P.  846; 
Fulton  v.  Waiters,  216  Pa.  56,  64  A.  860;  McKibben  v.  Wilson, 
182  P.  638,  —  Kan.  Sup.  — .  Compare  Sec.  456.  The  employ- 
ment of  a  sub-agent  is  not  ordinarily  a  breach  of  duty  to  the 
principal.  Nodler  v.  Pozorski,  124  Wis.  477,  102  N.  W.  892. 
There  is  no  duty  devolving  upon  a  broker  to  tell  his  principal  of 
other  lands  he  has  listed  with  him  for  sale.  Gaty  v.  Sack,  19 
Mo.  App.  470. 

All  agreements  between  a  real  estate  agent  or  broker  and  a 
proposed  purchaser  touching  the  subject-matter  of  his  employ- 
ment, which  are  not  disclosed  to  his  principal  should  be  scru- 
tinized closely  and  if  not  found  compatible  with  entire  integrity 
and  good  faith  toward  his  principal,  they  will  defeat  the  agent's 
claim  for  commission.  Hobart  v.  SJierburne,  66  Minn.  171,  68 
N".  W.  841;  Skinner  v.  Danville  (Fla.  Sup.  '09),  49  S.  125;  Clark 
v.  Hubbard,  44  Pa.  Super.  Ct.  37.  See  also  Sees.  291,  314,  320. 
Agency  for  both  principals  is  forbidden,  unless  both,  with  full 
knowledge  thereof,  consent.  Bates  v.  Copeland,  McArthur  &  M. 
(D.  C.),  50;  Alexander  v.  N.  W.  Chr.  Uni.,  57  Ind.  466;  Lloyd  v. 
Colston,  5  Bush  (Ky.),  587;  Raisin  v.  Clark,  41  Md.  158;  Follans- 
bee  v.  O'Reilly,  135  Mass.  80 ;  Horwitz  v.  Pepper,  128  Mich.  688, 
87  N.  W.  1034;  Friar  v.  Smith,  120  Mich.  411,  79  K  W.  633, 
46  L.  R.  A.  229;  Leathers  v.  Canfield,  117  Mich.  277,  75  N. 
W.  612,  45  L.  R.  A.  33;  Scribner  v.  Collar,  40  Mich.  375; 
Dartt  v.  Somnesym,  86  Minn.  55,  90  N.  W.  115;  De  Steiger 
v.  Hollington,  17  Mo.  App.  382 ;  Pugsley  v.  Murray,  4  E.  D. 
Smith  (K  Y.),  245;  Dunlap  v.  Richards,  2  E.  D.  Smith,  181; 
Watkins  v.  Consell,  1  E.  D.  Smith,  65;  Brierly  v.  Connelly, 
64  K  Y.  S.  9,  31  Misc.  268;  Norman  v.  Reuther,  54  N.  Y.  S. 
152,  25  Misc.  161;  Rowe  v.  Stephens,  53  N".  Y.  621;  Geery  v. 
Pollock,  44  N.  Y.  S.  673,  16  App.  Div.  321;  Abel  v.  Disbrow, 


PRINCIPAL  AND  AGENT.  235 

44  N.  Y.  S.  573,  15  App.  Div.  536;  Lansing  v.  Bliss,  33  N.  Y. 
S.  310,  86  Hun,  205;  Whitney  v.  Saunders,  49  N.  Y.  S.  1016, 

22  Misc.  539;  Tricks  v.  McKenna,  101  N.  Y.  S.  317,  115  App. 
Div.  701;  Haviland  v.  Price,  26  N.  Y.  S.  757,  6  Misc.  372; 
Lamb  v.  Baxter,  130  N.  C.  67,  40  S.  E.  850;  Maxwell  v.  West, 

23  Pa.  Super.  Ct.  302;  Linderman  v.  McKenna,  20  Pa.  Super. 
Ct.  409 ;  Meyer  v.  Hanchett,  43  Wis.  246. 

"Where  plaintiff  was  employed  by  defendant  to  sell  certain 
city  property,  and  effected  an  exchange  of  real  estate  with  one 
P;  after  the  transaction  was  completed  P  paid  plaintiff  $100 
for  his  services,  although  he  testified  he  had  not  previously 
employed  him.  Held,  there  being  no  charge  of  bad  faith,  that 
if  defendant  had  employed  plaintiff  to  sell  his  property,  and 
he  had  procured  a  sale  and  exchange  of  the  same  upon  terms 
satisfactory  to  defendant,  he  was  entitled  to  a  fair  compen- 
sation for  his  services.  Campbell  v.  Yager,  32  Neb.  266,  49 
N.  W.  181. 

An  agent  who  disregards  his  obligations  to  his  principal  can 
not  recover  compensation.  Jansen  v.  Williams,  36  Neb.  869, 
55  N.  W.  279;  Hardy  v.  Sheedy,  113  P.  1133,  58  Or.  195;  Alford 
v.  Creagh,  62  S.  254,  7  Ala.  App.  358;  Neal  v.  Bloomfield,  166 
111.  App.  402;  Dice  v.  Wallace,  190  111.  App.  493;  Bracken  v. 
Jackson,  140  N.  W.  892,  159  Iowa,  424;  Maden  v.  Brown,  169 
111.  App.  456 ;  Richardson  v.  Wilson,  178  S.  W.  566,  —  Tex.  Civ. 
App.  — .  No  legal  duty  rests  upon  a  broker,  to  learn  facts 
affecting  the  value  of  lands  received  in  exchange,  and  for  mis- 
representation made  in  good  faith,  where  the  principals  make 
the  contract.  Coe  v.  Ware,  40  Minn.  404,  42  N.  W.  205.  The 
violation  of  instructions  to  deliver  daily  receipts  of  money  re- 
ceived, is  a  breach  of  duty  which  warrants  the  principal  in 
terminating  the  agency.  Macferran  v.  Gallinger,  210  Pa.  St. 
74,  59  A.  435;  Featherstone  v.  Trone,  82  Ark.  381,  102  S.  W. 
196.  It  is  the  duty  of  a  broker  to  bring  the  minds  of  the 
vendor  and  purchaser  to  an  agreement  to  entitle  him  to  com- 
missions. Barnard  v.  Monarch,  33  How.  Pr.  (N.  Y.)  440,  1 
Abb.  Dec.  108,  3  Keyes,  203.  See  also  Sec.  33. 

Where  a  broker,  after  securing  a  customer,  made  a  contract 
with  the  latter  to  sell  the  land  at  an  advance  and  did  so,  his 
right  passing  to  an  assignee..  Held,  that  this  was  not  antag- 


236  AMEEICAN  LAW  REAL  ESTATE  AGENCY. 

onistic  to  his  first  principal,  and  did  not  preclude  him  from 
recovering  the  commissions  promised.  Einsland  v.  Grimshawe 
(N.  C.  Sup.  '07),  59  S.  E.  1000.  Evidence  that  a  broker,  on 
the  prospective  purchaser  saying  that  the  property  ought  to 
be  bought  for  $2.50  per  acre  less,  said  that  would  be  enough, 
does  not  conclusively  show  that  he  was  not  honestly  trying 
to  sell.  Lewis  v.  Susmilch,  130  Iowa,  203,  106  N.  W.  624. 
A  broker  guilty  of  bad  faith  forfeits  his  right  to  commissions. 
Bunn  v.  Keach,  214  111.  259,  73  N.  E.  419 ;  Woolf  v.  Sullivan, 
128  111.  App.  62,  affim'd  224  111.  509,  79  N.  E.  646;  McDon- 
ald v.  Maltz,  94  Mich.  172,  53  N.  W.  1058;  Wood  v.  Palmer, 
151  Mich.  30,  115  N.  W.  242,  14  D.  L.  N.  963 ;  Low  v.  Wood- 
lury,  95  N.  Y.  S.  336,  107  App.  Div.  298.  Good  faith  is  not 
shown  by  the  broker  clandestinely  also  representing  the  op- 
posite party.  Perkins  v.  Underhill,  103  N.  Y.  S.  25,  118  App. 
Div.  170. 

The  obligation  is  reciprocal,  and  the  owner,  in  revoking 
a  contract  with  his  broker,  must  act  in  good  faith.  Bailey  v. 
Smith,  103  Ala.  641,  15  So.  900;  Branch  v.  Moore,  84  Ark. 
462,  105  S.  W.  178 ;  Uphof  v.  Ulrich,  2  111.  App.  399 ;  Bealer 
v.  Creswell,  3  Md.  196;  Cadigan  v.  Crabtree,  186  Mass.  7,  70 
N.  E.  1033,  66  L.  E.  A.  982;  Haven  v.  Tartar,  124  Mo.  App. 
691,  102  S.  W.  21 ;  Alden  v.  Earle,  56  N.  Y.  Sup.  Ct.  366,  4 
N.  Y.  S.  548;  Neal  v.  Lehman,  11  Tex.  Civ.  App.  461,  34 
S.  W.  153;  Newton  v.  Conness  (Tex.  Civ.  App.  '08),  106  S. 
W.  892 ;  Hennegan  v.  Wiley,  178  N.  W.  294,  —  S.  D.  Sup.  — . 

The  act  of  the  vendor  in  secretly  paying  commissions  to  the 
purchaser's  agent  is  contrary  to  good  faith  and  the  policy  of 
the  law.  Lightcap  v.  Nicolai,  34  Pa.  Super.  Ct.  189.  And  in 
such  case  the  purchaser  has  a  right  of  action  against  the  ven- 
dor to  recover  the  amount  thereof.  Grant  v.  Gold  Ex.,  etc.f 
Syn.  (1900),  1  Q.  B.  (Eng.)  233,  69  L.  J.  Q.  B.  150,  82  L.  T. 
K.  N.  S.  5,  48  W.  R.  280.  Where  an  agent  bought  his  prin- 
cipal's land  by  sheriff's  deed  good  faith  was  violated,  and 
the  conveyance  will  be  set  aside.  Smeltzer  v.  Lombard,  57 
Iowa,  294. 

A  broker  who,  in  association  with  others,  purchases  his  prin- 
cipal's property,  where  all  is  open  and  he  acts  in  good  faith, 
is  entitled  to  recover  commissions  on  the  sale.  Reed's  Ex.  v. 


PRINCIPAL  AND  AGENT.  237 

Eeed,  82  Pa.  St.  420;  Texas  Brok.  Co.  v.  John  BaTcly  &  Co. 
(Tex.  Civ.  App.  '08),  109  S.  W.  1001;  Blount  v.  Eobeson,  3 
Jones  (N.  C.),  Eq.  73.  Where  an  owner  of  real  estate,  which 
he  has  listed  with  an  agent  for  sale  for  a  definite  price,  sells 
the  same  unknowingly,  through  a  go-between,  to  whom  the 
deed  is  made,  to  one  who  was  induced  to  purchase  it  by  the 
efforts  of  the  agent,  but  in  good  faith,  and  in  ignorance  of  the 
real  purchaser,  and  for  a  consideration  less  than  that  given 
the  agent,  is  not,  there  being  no  exclusive  agency,  liable  for 
the  commission  agreed  to  be  paid  for  the  production  of  a  pur- 
chaser ready,  able  and  willing  to  pay  the  price  fixed.  Quist 
v.  Goodfellow,  99  Minn.  509,  110  N.  W.  65.  Compare  Sec.  444. 

A  real  estate  agent  owes  to  his  principal  the  duty  of  making 
a  full,  fair  and  prompt  disclosure  of  all  the  circumstances 
affecting  the  principal's  rights  or  interests;  whatever  advan- 
tages accrue  to  him  by  the  violation  of  that  duty,  he  must 
make  good  to  his  principal;  if,  after  he  has  in  fact  contracted 
to  sell  the  land  to  a  third  person  at  an  advanced  price,  he 
purchases  the  land  himself  from  his  principal,  without  disclos- 
ing the  contract,  and  if  he  thereafter  completes  the  sale,  he 
renders  himself  liable  to  his  principal  in  damages.  Kingsley 
v.  Wheeler,  95  Minn.  360,  104  N.  W.  543;  Eawlings  v.  Collins, 
36  App.  D.  C.  72.  See  also  Sec.  389.  A  broker  employed  to 
purchase  property  should  inform  his  principal  of  the  lowest  price 
at  which  it  may  be  bought;  a  failure  to  do  this  is  a  breach  of 
the  duty  he  owes  his  principal.  Carpenter  v.  Fisher,  175  Mass. 
9,  55  N.  E.  479. 

A  real  estate  broker  had  found  a  purchaser  at  the  price 
stipulated  for  land  purported  to  be  owned  by  his  principal,  and 
was  then  referred  by  him  to  other  tenants  in  common,  with 
whom  he  subsequently  made  terms  at  a  higher  price,  except 
two-eighths  interest  owned  by  them,  but  did  not  disclose  this 
to  his  first  principal.  Held,  there  was  no  duty  owing  by  the 
agent  as  to  the  outstanding  two-eighths,  and  it  was  not  incum- 
bent upon  him  to  inform  his  principal.  Black  v.  Barr,  14  Pa. 
Super.  Ct.  98,  651. 

Where  no  other  instruction  defining  a  broker's  duty  is  given, 
it  is  error  to  refuse  an  instruction  that  the  duty  of  a  broker 


238  AMERICAN  LAW  REAL  ESTATE   AGENCY. 

is  to  bring  the  buyer  and  seller  together  and  effect  a  purchase 
of  the  property  according  to  the  terms  agreed  on  by  the  seller 
and  the  broker,  and  that  the  latter  is  not  entitled  to  commis- 
sion for  an  unsuccessful  effort  to  effect  a  sale.  West  v.  Demme, 
128  Mich.  11,  87  N.  W.  95.  See  also  Sec.  543,  309. 

A  complaint  for  a  broker's  commissions  tinder  a  contract, 
whereby  defendant  agreed  that,  in  consideration  of  plaintiff's 
procuring  a  contract  to  be  made  with  E  for  the  purchase  of 
certain  land  of  the  defendant,  plaintiff  should  receive  a  com- 
mission in  the  event  of  the  closing  of  title,  and  only  in  the 
event  that  title  should  pass,  except  for  default  of  defendant, 
is  insufficient  in  alleging  only  that  plaintiff  procured  a  con- 
tract for  the  purchase  of  the  land  to  be  executed  by  defendant 
and  E,  and  that  because  of  the  default  of  defendant  the  prem- 
ises were  not  conveyed;  it  should  show  that  E  was  ready  to 
take  title  under  the  terms  and  at  the  time  provided  in  the 
contract,  and  the  particular  acts  of  omission  of  defendant  which 
prevented  the  passing  of  the  title.  Davis  v.  Silverman,  90  N. 
Y.  S.  589,  98  App.  Div.  305. 

In  an  action  against  their  principal  for  damages  for  the  loss 
of  commissions  caused  by  the  refusal  to  accept  the  deed  and 
carry  out  the  contract  where  the  defense  is  want  of  mental 
capacity  to  contract,  evidence  of  the  actual  value  of  the  prop- 
erty is  competent  only  when  offered  to  show  that  the  price 
offered  was  so  exorbitant  as  to  be  inconsistent  with  good  faith 
on  the  part  of  the  brokers  in  undertaking  to  contract  for  the 
purchase  at  the  price  authorized.  Cavender  v.  Waddingham, 
5  Mo.  App.  457. 

Unless  the  principal  is  fully  advised  of  all  the  facts  a  broker 
employed  to  buy  real  estate  can  not  sell  to  his  principal  prop- 
erty in  which  he  has  an  individual  interest.  England  v.  Bur- 
nett, R.  E.,  etc.,  Co.,  79  Mo.  App.  294. 

Nor  may  a  broker  employed  to  sell  property  become  the 
buyer  thereof.  Cornwall  v.  Foord,  96  111.  App.  366;  Smith  v. 
Townsend,  109  Mass.  500;  Merriam  v.  Johnson,  86  Minn.  61, 
90  N.  W.  116;  Gardner  v.  Ogden,  22  N.  Y.  327;  Harrison  v. 
McHenry,  9  Ga.  164;  Ames  v.  Pt.  Huron  Log,  etc.,  Co.,  11 
Mich.  139 ;  Robertson  v.  Western  M.  &  F.  Ins.  Co.,  36  Am.  Dec. 
673;  Moseley  v.  Back,  3  Munf.  (Va.)  232;  Clark  v.  Bird,  66 


PBINCIPAL  AND  AGENT.  239 

N.  Y.  App.  Div.  284,  72  N".  Y.  S.  769 ;  Alford  v.  Creagh,  62  S. 
254,  7  Ala.  App.  358 ;  Beaver  v.  Continental  Bldg.  &  Loan  Ass'n, 
116  P.  1105,  15  Cal.  App.  190;  Dahlgreen  v.  Story,  39  App.  D.  C. 
29 ;  Fox  v.  Patterson,  43  App.  D.  C.  484 ;  Steven  v.  Gavin,  99  N. 
E.  663,  255  111.  480;  Dice  v.  Wallace,  100  111.  App.  493;  O'Mara 
v.  Lawrence,  141  N.  W.  312,  159  Iowa,  448;  Walling  v.  Poulsen, 
125  N".  W.  373,  160  Mich.  392;  Hogle  v.  Meyering,  126  K  W. 
1063,  161  Mich.  472 ;  La  Forge  v.  Cornell,  127  K  Y.  Supp.  453 ; 
Franck  v.  Blazier,  133  P.  860,  66  Or.  377;  Texas  Bro.  Co.  v. 
Jno.  Buckley  &  Co.,  128  S.  W.  431,  60  Tex.  Civ.  App.  466. 

If  a  real  estate  owner  places  property  in  the  hands  of  a 
broker  for  sale  at  a  fixed  price,  and  the  broker  sells  it  for 
more  to  one  for  whom  he  is  acting  as  agent  for  the  investment 
of  money,  and  secretly  retains  the  excess  he  commits  a  fraud 
upon  the  seller  and  the  purchaser  for  both  of  whom  he  acts 
as  agent,  and  subjects  himself  to  a  double  recovery  of  the  ex- 
cess. Lewis  v.  Dennison,  2  App.  Cas.  (D.  C.)  387;  Hannon  v. 
Prentiss,  124  Mich.  417,  83  N.  W.  102;  Marsh  v.  Buchan,  46 
N.  J.  Bq.  595,  22  A.  128.  See  also  Sec.  964. 

To  entitle  a  broker  to  recover  commissions  for  selling  de- 
fendant's property,  he  must  show  an  employment,  the  rendi- 
tion of  services  at  defendant's  request,  and  that  he  acted  in  good 
faith  for  their  best  interests.  Roome  v.  Robinson,  90  N".  Y.  S. 
1055,  99  App.  Div.  143;  Stone  v.  Kries,  202  111.  App.  43; 
Schlessener  v.  Mott,  190  P.  745,  —  Kan.  Sup.  — . 

A  broker  employed  to  sell  real  estate  for  $105,000  or  more 
is  not  entitled  to  recover  commissions  where  he  might  have 
procured  a  purchaser  at  $110,000  instead  of  $105,000.  Lich- 
tenstein  v.  Mott,  91  N.  Y.  S.  57,  99  App.  Div.  570;  Harrison 
v.  Lakeman,  189  Mo.  581,  88  S.  W.  53.  See  also  Sec.  412a. 

A  purchase  by  a  real  estate  agent  of  the  property  in  his 
hands  for  sale,  without  the  knowledge  of  his  principal,  is  suffi- 
cient to  avoid  the  transaction,  no  matter  if  there  was  no  ac- 
tual fraud  or  no  injury  to  the  principal  resulted.  Butler  v. 
Agnew,  9  Cal.  App.  327,  99  P.  395. 

A  broker  employed  to  procure  a  purchaser  of  real  estate, 
is  not  liable  to  the  principal  for  failing  to  exercise  proper 
diligence  to  obtain  a  purchaser,  nor  for  failing  to  communi- 
cate to  the  principal  the  fact  that  he  has  procured  an  intend- 


240  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

ing  purchaser;  but  he  may  terminate  his  efforts  without  no- 
tice to  the  principal.  Siegel  v.  Rosenzweig,  114  N.  Y.  S.  179, 
129  App.  Div.  547. 

A  real  estate  broker  can  not  be  held  liable  for  representing 
to  an  intending  purchaser,  that  the  owner  would  not  accept 
less  than  ^he  sum  named  by  the  broker  for  the  premises,  though 
the  owner  had,  in  fact,  agreed  with  him  to  sell  at  a  lower  fig- 
ure, in  the  absence  of  any  confidential  relations  between  the 
broker  and  the  intending  purchaser  or  fraud  to  prevent  in- 
quiry or  investigation  by  such  purchaser.  Ripy  v.  Cronan 
(Ky.  Ct.  App.  '09),  115  S.  W.  791. 

An  agent  to  buy  lands  for  his  principal  can  not  buy  of  him- 
self; and  an  agent  to  sell  lands  for  his  principal  can  not  sell 
to  himself;  nor  can  an  agent  to  receive  payments  for  his  prin- 
cipal, bind  the  latter  by  the  receipt  of  money  due  from  him- 
self. Mechem  on  Agency,  Sec.  68. 

Where  a  selling  broker  is  aware  that  a  customer  is  resolved 
and  prepared  to  pay  the  price  asked,  he  should  not  send  the 
customer  to  his  principal  to  negotiate  directly,  without  com- 
municating to  the  principal  his  knowledge  of  the  customer's 
resolution;  and,  if  he  withholds  such  information  from  the 
principal,  he  forfeits  any  claim  for  commissions,  even  though 
the  principal  obtained  from  the  customer  the  full  price  originally 
asked.  Carter  v.  Owens  (Fla.  Sup.  '09),  50  S.  641. 

An  agent  employed  to  sell  ordinarily  owes  to  his  principal  the 
duty  to  use  such  skill  and  industry  as  may  be  requisite  to  ac- 
complish the  object  of  his  employment,  and  with  full  fidelity  to 
the  best  interests  of  his  employer.  Handly  v.  Shafer,  59  S.  286, 
177  Ala.  636. 

A  broker  employed  to  effect  an  exchange  of  realty  held  bound 
to  use  ordinary  care,  and  to  occupy  a  fiduciary  relation  requiring 
him  to  act  with  loyalty  and  good  faith.  Myers  v.  Adler,  176  S. 
W.  538,  188  Mo.  App.  607. 

Where  an  agent  employed  to  find  a  buyer  for  land  has  com- 
municated an  offer  to  his  absent  principal,  receiving  his  accept- 
ance, and  then  obtained  knowledge  of  a  better  offer,  it  is  his 
duty  to  communicate  the  new  offer  to  the  principal,  and  not  to 
communicate  the  acceptance  to  the  maker  of  the  first  offer.  Ker- 
shaw  v.  Schafer,  129  P.  1137,  88  Kan.  691. 


PRINCIPAL  AND  AGENT.  241 

It  is  a  broker's  duty  to  inquire  as  to  terms  of  sale,  and  as  to 
the  general  character  of  the  property,  and  it  is  not  misrepreien- 
tation,  either  wilful  or  inadvertent,  for  the  owner  to  remain  mute 
when  not  asked  as  to  encroachments  thereon.  Wiggins  v.  Estate 
of  Chas.  E.  Coddington,  145  N.  Y.  Sup.  3,  83  Misc.  Eep.  439. 

That  a  land  broker  was  told  by  the  owner  that  defects  had 
been  found  in  the  title,  but  that  he  believed  it  was  good,  as  they 
had  owned  the  land  thirty  or  forty  years,  was  sufficient  to  put 
the  broker  on  inquiry  and  charge  him  with  notice  of  the  defects, 
the  statement  by  the  owner  that  the  title  was  good,  for  the  reason 
given,  being  merely  the  expression  of  an  opinion.  Montgomery 
v.  Amsler,  122  S.  W.  307,  57  Tex.  Civ.  App.  216. 

Broker  was  not  entitled  to  commissions  for  securing  a  pur- 
chaser, where  the  sale  failed  on  account  of  broker's  misrepresen- 
tation. Maries  v.  ScJiultze,  177  111.  App.  638. 

The  rule  that  a  broker  violating  his  trust  forfeits  his  com- 
missions does  not  apply  to  mere  errors  of  judgment,  or  omissions 
not  amounting  to  misconduct  or  gross  disregard  of  duty.  Neigh- 
bor v.  Pacific  Realty  Ass'n,  124  P.  523,  40  "Utah,  610,  Ann.  Gas. 
1914  D,  1200. 

Where  a  corporation  was  employed  to  procure  a  purchaser  of 
realty,  and  was  given  an  option  to  purchase,  which  option  was 
exercised  within  sixty  days  after  an  agreement  and  negotiation 
with  a  third  person  who  desired  to  buy  was  begun ;  the  acts  of  the 
officers  of  the  corporation  in  offering  to  such  persons  at  an  ad- 
vance were  done  under  the  mistaken  belief  that  the  same  were 
proper;  though  they  failed  to  notify  the  owner  of  the  facts,  they 
were  not  deprived  of  the  stipulated  commission  for  procuring  a 
purchaser,  though  they  must  account  to  the  owner  for  the  profits 
made  on  resale  to  such  third  person.  Id. 

If  a  broker  is  not  the  agent  of  the  vendor,  his  right  to  com- 
missions which  they  agreed  to  pay  him  is  not  affected  by  his  not 
advising  them  that  the  purchaser  represented  an  undisclosed  prin- 
cipal, or  by  his  agreement  to  divide  commission  with  the  pur- 
chaser; he  owed  no  duty  in  such  respect  to  the  vendor.  Lawler  v. 
Armstrong,  102  P.  775,  53  Wash.  664. 

Failure  of  the  broker  to  disclose  to  the  vendor  that  the  pur- 
chaser was  acting  as  agent  for  an  undisclosed  principal  does  not 
affect  the  broker's  right  to  commission,  the  purchaser  being  finan- 


242  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

cially  able  to  carry  out-  his  contract,  so  that  the  vendors  are  not 
injured.  Id. 

That  a  broker,  after  procuring  a  tenant  and  causing  him  to 
furnish  a  bond  to  secure  the  rent,  advanced  money  to  the  tenant, 
either  before  or  after  the  execution  of  the  lease,  in  order  that  the 
tenant  might  procure  fixtures  used  in  the  leased  premises,  does 
not  show  bad  faith  on  the  part  of  the  broker,  or  tend  to  establish 
an  interest  inconsistent  with  his  duty  to  his  principal,  the  broker 
having,  in  fact,  no  interest  in  the  lease.  Rutz  v.  Ob  ear,  115  P. 
67,  15  Cal.  App.  435. 

There  was  no  conflict  of  interest  and  duty  where  vendor's 
broker,  having  induced  his  father  to  purchase,  merely  examined 
the  contract  and  title  for  his  father  to  see  that  they  conformed 
to  the  agreement,  and  he  ought  to  recover  the  commission.  Own- 
ers' Realty  Co.  of  Baltimore  City  v.  CooTc,  90  A.  602,  123  Md.  1. 

Under  Civil  Code,  sec.  1461,  providing  that  everything  which 
an  employee  acquires  by  virtue  of  his  employment,  except  com- 
pensation, belongs  to  the  employer,  whether  acquired  lawfully 
or  unlawfully,  an  agent  employed  to  effect  a  purchase  of  land,  at 
the  owner's  lowest  price,  for  a  commission  of  a  specified  sum  per 
acre,  may  not  act,  without  notice  to  the  principal,  in  the  employ- 
ment of  the  owner  and  receive  compensation  therefor,  and  such 
Commission  can  not  be  retained,  but  the  principal  may  sue  there- 
for. McGinty  v.  Reynolds,  133  N.  W.  281,  28  S.  D.  248. 

Where  an  agent  who  effects  an  exchange  of  land  for  his  prin- 
cipal has  a  secret  agreement  with  the  other  party  for  commis- 
sions, and  actively  urges  his  principal  to  make  the  trade,  the  lat- 
ter is  not  liable  for  brokerage.  Erland  v.  Gibbons,  163  N".  Y. 
Sup.  582,  176  App.  Div.  552,  re.  judg.  159  N.  Y.  Sup.  875. 

Eeal  estate  firm  employed  to  sell  land  can  not  legally  sell  it  to 
a  member  of  such  firm  without  first  disclosing  to  their  principal 
that  purchaser  is  such  member.  Baird  v.  Conover,  168  P.  797, 
—  Okl.  Sup.  — . 

One  contracting  to  sell  land  for  another  may  act  for  purchaser 
in  any  way  not  inconsistent  with  duty  to  principal.  Smith  v. 
Sharp  R.  E.  Co.,  77  S.  40,  200  Ala.  666. 

When  agent  is  employed  to  find  a  purchaser  for  land,  it  is  his 
duty  to  disclose  the  name  of  the  purchaser  to  his  employer,  but 
where  agent  is  commissioned  to  sell  on  stated  terms,  and  makes 


PRINCIPAL  AND  AGENT.  243 

written  agreement  of  sale,  which  is  binding  on  purchaser,  duty  to 
disclose  and  duty  to  execute  a  deed  are  concurrent.  Smith  v. 
Sharp  Real  Estate  Co.,  77  S.  40,  200  Ala.  666. 

An  agreement  by  the  owner  to  deliver  a  deed  to  purchaser 
"under  the  security"  is  acceptance  of  the  purchaser,  although  his 
identity  is  not  disclosed,  but  the  initiative  is  on  such  buyer  to 
tender  a  required  payment  and  security  before  the  seller  can  be 
required  to  execute  a  deed.  Id. 

Under  agency  agreement  whereby  seller  of  land  agrees  to  de- 
liver deed  "to  the  purchaser,"  it  is  necessary  that  the  name  of  the 
buyer  be  disclosed  within  the  time  in  which  deed  is  to  be 
made.  Id. 

A  firm  of  real  estate  brokers  are  liable  to  a  client,  for  damages 
from  their  breach  of  trust  in  effecting,  while  secretly  representing 
the  other  party,  an  exchange  of  valuable  property  of  their  client 
for  the  equity,  known  by  them  to  be  of  little  value  to  the  other 
party,  in  other  property.  Bradley  v.  Davidson,  47  App.  D.  C.  266. 

A  real  estate  broker  having  been  employed  to  effect  a  real  es- 
tate exchange  is  bound  to  act  for  his  principal  alone,  using  his 
utmost  good  faith  in  principal's  behalf.  Lister  v.  Sakwinski,  172 
K  W.  397,  —  Mich  Sup.  — . 

A  real  estate  broker  is  required  to  act  with  the  utmost  good 
faith  and  loyalty  for  the  furtherance  and  advancement  of  the 
interests  of  his  principal.  Prouty  v.  Blanchard,  106  A.  831,  — 
Vt.  Sup.  — . 

Though  an  agent  to  sell  at  a  fixed  price  does  his  duty  and 
keeps  principal  fully  informed,  and  if  he  knows  that  more  ad- 
vantageous terms  can  be  obtained,  he  is  under  obligation  to  com- 
municate the  facts  with  reference  thereto  to  his  principal,  and  is 
liable  for  failure  so  to  do.  Pederson  v.  Johnson,  172  N.  W.  723, 
—  Wis.  Sup.  — . 

Vendor  having  agreed  to  pay  broker  commissions  pro  rata  upon 
payment  of  purchase  price  is  required  to  act  in  good  faith,  and 
do  nothing  to  prevent,  discourage  or  embarrass  the  complete  pur- 
chase of  the  property,  and  do  everything  possible  to  aid  in  secur- 
ing the  purchase  price.  Ritzlaff  v.  Trainor-Desmond  Go.,  183  P. 
269,  —  Cal.  App.  — . 

A  broker  negotiating  for  both  sides  owes  to  each  the  same 
good  faith  that  he  would  have  owed  to  either  had  he  acted  for 


244  AMEKICAN   LAW   EEAL   ESTATE   AGENCY. 

him  alone.    James  E.  Carlson,  Inc.,  v.  Babler,  174  N.  W.  824, 

—  Minn.  Sup.  — . 

Where  a  real  estate  agent  was  engaged  by  a  corporation  to  pro- 
cure for  it  a  parcel  of  land  on  which  it  desired  to  erect  a  factory, 
and  a  fiduciary  relation  existed  between  the  corporation  and  the 
agent,  the  agent  can  not  make  any  secret  profit  out  of  the  trans- 
action, and  if  he  does  so,  he  must  account  therefor  to  his  prin- 
cipal, the  corporation.  H.  J.  Jaeger  Co.  v.  Hannan,  108  A.  1, 

—  N.  J.  Eq.  — . 

A  broker  employed  to  negotiate  a  sale  and  receive  for  his  ser- 
vices the  usual  commissions  is  under  the  duty  of  making  the 
best  possible  bargain  for  his  principal,  and  is  not  permitted  to 
become  personally  interested  in  the  sale  except  to  the  extent  of 
his  commissions.  Chester  v.  Campbell,  109  A.  961,  —  N.  J.  Ct. 
of  Err.  and  App.  — . 

It  is  the  duty  of  a  real  estate  broker  to  disclose  to  his  prin- 
cipal the  facts  as  to  the  value  of  the  principal's  property,  and  it 
is  a  breach  of  duty  for  the  broker  to  conceal  from  his  principal 
the  fact  that  oil  had  been  struck  on  adjacent  premises  which 
would  greatly  increase  the  value  of  the  principal's  property. 
Brown  v.  Musgrave,  222  S.  W.  606,  —  Tex.  Civ.  App.  — . 

Eeal  estate  agents,  when  becoming  agents  for  sale,  are  under 
duty  to  inform  their  principal  of  their  being  financially  inter- 
ested on  the  side  of  the  proposed  purchaser.  New  ell-Murdoch 
Realty  Co.  v.  WicTcham,  190  P.  359,  —  Cal.  Sup.  — . 

Interest  of  brokers  as  stockholders  in  a  proposed  purchaser  is 
such  an  interest  as  to  require  them  to  inform  their  principal,  the 
vendor,  thereof.  Id. 

If  broker's  agency  is  terminated  on  the  eve  of  its  successful 
culmination,  time  of  revocation  is  a  strong  indication  of  bad  faith 
on  the  part  of  the  owner,  and  unless  the  inference  is  rebutted  by 
evidence  the  owner  will  be  held  liable  for  commissions.  Hennegan 
v.  Wiley,  178  K  W.  294,  —  S.  D.  Sup.  — . 

Agents  employed  by  a  landowner  to  sell  or  exchange  properties 
for  an  agreed  commission  owe  their  principal  the  utmost  good 
faith  during  the  agency,  and  if  they  violate  their  duty  by  conceal- 
ing information  as  to  the  price  of  property,  and  by  misrepresen- 
tation and  fraud  obtain  a  profit  for  themselves  in  excess  of  the 
agreed  commission,  they  forfeit  their  right  to  it,  and  become 


PRINCIPAL  AND  AGENT.  245 

liable  for  damages  to  the  principal  for  their  bad  faith.    Schlesener 
v.  Mott,  190  P.  745,  —  Kan.  Sup.  — . 

Sec.  291.    Concealment  and  its  effect  upon  rights. 

"Where  defendants,  who  were  employed  by  plaintiff  to  find  a 
purchaser  for  a  lot,  after  finding  a  purchaser  and  receiving 
part  of  the  price,  knew  before  the  deed  was  delivered  that  the 
purchaser  had  sold  at  an  advance,  but  did  not  inform  plaintiffs, 
his  claim,  if  any,  against  them,  is  for  damages,  for  which  an 
action  at  law  is  the  proper  remedy.  Dickinson  v.  Updike  (N.  J. 
Err.  &  App.),  49  A.  712.  The  rule  that  a  fiduciary  land  agent 
is  bound  to  make  the  fullest  disclosure  of  all  matters  connected 
with  property  bought  by  himself  from  his  principal  extends  to 
avoid  a  subsequent  sale  of  the  property  by  such  agent  to  a 
party  cognizant  of  the  concealment.  Norris  v.  Taylor,  49  111. 
17.  Compare,  Collins  v.  Case,  23  Wis.  230.  A  real  estate 
broker  who  conceals  from  his  principal  the  name  of  the  pur- 
chaser whom  he  procures,  and  the  fact  that  such  purchaser  has 
bought  an  adjoining  lot,  and  does  this  for  the  avowed  purpose 
of  preventing  the  principal  from  advancing  the  price,  is  not 
entitled  to  commissions.  Wilkinson  v.  McCullough,  106  Pa.  St. 
205,  46  A.  357.  See  also  Sec.  290. 

Where  the  broker  possesses  an  interest,  in  addition  to  his  em- 
ployment, in  the  transaction  he  has  contracted  to  negotiate,  and 
fails  to  disclose  it  to  his  principal,  such  omission  of  duty  deprives 
him  of  the  right  to  compensation  for  his  services.  Collins  v. 
McClurg,  1  Colo.  App.  348,  29  P.  299;  Jeffries  v.  Bobbins  66 
Kan.  427,  71  P.  852;  De  L'Archerie  v.  Rutherford  (Wash.  Sup. 
'09),  102  P.  1033;  Buck  v.  Hozeboom  (Neb.  Sup.  '02),  90  N.  W. 
635;  Ryan  v.  Kahler,  (Tex.  Civ.  App.  '98),  46  S.  W.  71;  Central 
Turnverein  of  Pitts,  v.  Fitzpatrick,  86  A.  487,  238  Pa.  532; 
Nichols  v.  Greenstreet,  130  N.  Y.  Sup.  843,  71  Misc.  Rep.  196, 
judg.  aff.  131  N".  Y.  Supp.  1131,  146  App.  Div.  940;  Andrew  v. 
Mace,  194  S.  W.  598,  —  Tex.  Civ.  App.  — ;  Braden  v.  Hollan, 
163  -  N.  W.  199,  —  Iowa  Sup.  — .  All  agreements  between 
a  real  estate  agent  or  broker  and  a  proposed  purchaser 
touching  the  subject-matter  of  his  employment,  which  are 
not  disclosed  to  his  principal  should  be  scrutinized  closely, 
and  if  not  found  compatible  with  entire  integrity  and 


246  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

good  faith  toward  his  principal,  they  will  defeat  the  agent's 
claim  for  commissions  from  his  principal.  Hobart  v.  Sherburne, 
66  Minn.  171,  68  N.  W.  841.  See  also  supra  and  Sees.  290,  314, 
320.  Where  a  sub-agent  allows  the  owner  to  go  on  and  deal 
with  a  prospective  purchaser  as  though  he  was  free  from  obli- 
gations for  commissions,  and  lowers  his  price  to  him  in  con- 
sequence, while  concealing  the  fact  that  he,  the  said  sub-agent, 
was  acting  for  the  agent,  this  conduct  prevents  the  latter,  on  a 
sale  being  made,  from  recovering  from  the  seller  any  com- 
pensation for  his  services.  Mullen  v.  Bowen,  22  Ind.  App.  294, 
53  N.  E.  790.  Where  the  broker's  name  was  signed  to  a  paper 
containing  an  offer  to  purchase  the  property  and  his  participa- 
tion was  not  sought  to  be  concealed,  and  he  acted  openly  and 
fairly,  his  right  to  recover  commissions  was  not  affected  by  the 
fact  that  he  was  one  of  the  intended  purchasers.  Reed's  Ex.  v. 
Reed,  82  Pa.  St.  420.  Where  an  agent  purchases  the  property 
at  a  grossly  inadequate  price,  by  the  concealment  of  facts  and 
information  relating  thereto,  which  it  was  his  duty  to  disclose, 
the  sale  will  be  set  aside.  Norris  v.  Taylor,  49  111.  17. 

Where  an  agent  employed  to  sell  a  ranch  introduced  to  the 
owner  a  customer  who,  at  the  time,  had  not  the  money  to  buy, 
but  was  expecting  to  get  money,  and  did  afterwards  get  the 
money  and  completed  the  purchase  from  the  owner  on  sub- 
stantially the  same  terms  as  those  furnished  to  the  agent  by 
the  owner,  the  agent  was  entitled  to  his  commissions;  the  fact 
that  the  connection  of  the  agent  with  the  transaction  was,  by 
agreement  between  the  agent,  the  owner  and  a  third  party, 
through  whom  the  purchaser  was  introduced  to  the  owner,  kept 
secret  from  the  purchaser,  did  not  taint  the  contract  with  dis- 
honesty so  as  to  defeat  the  agent  from  recovering  his  commis- 
sions. McCampbell  v.  Cavis,  10  Cal.  App.  242,  50  P.  728. 

Where  an  agent  for  the  sale  of  land  is  to  receive  as  his  com- 
pensation all  above  a  minimum  sum  per  acre  and  a  fixed  sum 
in  addition,  and  the  agent  sells  the  land  for  an  amount  above 
the  minimum,  but  conceals  that  fact  and  reports  to  the  prin- 
cipal that  he  has  sold  it  at  the  minimum,  he  will  not  be  entitled 
to  recover  the  additional  fixed  sum  agreed  upon.  Fulton  v.  Wai- 
ters, 28  Pa.  Super.  Ct.  269,  Rev.  216  Pa.  56,  64  A.  860.  (This 
ruling  was  reversed  by  the  Supreme  Court  and  the  broker  held 


PRINCIPAL  AND  AGENT.  247 

entitled  to  the  additional  fixed  sum,  on  the  ground  that  there 
was  no  relation  of  trust  and  confidence  that  required  from  the 
broker  a  disclosure  to  the  owner  of  the  terms  of  the  sale.) 

Where  the  agents  for  the  sale  of  land  conceal  from  the  pur- 
chaser the  fact  that  they  are  part  owners  of  the  land,  but 
instead  express  an  intention  to  purchase  an  interest  themselves 
upon  the  same  terms  as  they  are  selling  to  the  purchasers,  such 
representations  would  constitute  such  a  fraud  as  would  avoid 
the  purchase.  Wren  v.  Moncure,  95  Va.  369,  28  S.  E.  588. 

In  an  action  by  a  real  estate  agent  for  commissions,  the  owner 
testified  that  when  the  agent's  sub-agent  introduced  a  pur- 
chaser, the  latter  stated  he  wished  to  deal  directly  with  the 
owner,  who  then  stated  a  less  price  than  fixed  in  the  contract 
of  employment;  the  owner  testified  that  the  sub-agent  and  the 
purchaser  stated  that  they  made  no  arrangement  with  the  agent, 
that  the  sub-agent  said  nothing  about  commissions,  and  that  he 
(the  owner)  told  the  purchaser  and  sub-agent  that  if  the  agent 
had  sold  the  land,  he  would  have  to  let  it  go ;  the  sub-agent  tes- 
tified that  he  asked  the  owner  if  the  latter  would  not  have 
trouble  with  the  agent  about  the  commissions;  to  which  the 
owner  replied  that  he  would  not,  as  he  was  selling  the  farm; 
the  sub-agent' testified  that  he  told  the  owner  he  did  not  charge 
any  commission,  as  he  would  get  that  from  the  agent;  the  pur- 
chaser substantiated  the  sub-agent's  testimony;  there  was  no 
evidence  to  show  that  the  owner  knew  that  the  sub-agent  was 
acting  for  the  agent.  Held,  that  the  question  whether  the  sub- 
agent  concealed  such  fact  from  the  owner  should  have  been 
submitted  to  the  jury.  Mullen  v.  Bowen,  22  Ind.  App.  294,  53 
N.  E.  790. 

Where  a  broker  reports  an  offer  for  property  to  his  principal, 
without  stating  by  whom  the  offer  is  made,  and  afterwards  a 
sale  of  the  same  property  is  effected  through  another  broker  at 
the  same  price  first  reported  and  to  the  same  purchaser  and  he 
receives  a  commission  therefor,  the  first  broker  can  not  recover 
in  an  action  against  the  vendor  for  the  commissions,  unless  it 
appears  that  the  latter  at  the  time  of  the  sale  was  aware  of 
the  facts  above  stated,  or  that  notice  of  the  same  was  given 
by  the  broker  before  the  completion  of  the  contract  with  and 
payment  of  commissions  to  the  second  broker.  Tinge  v.  Moale. 


248  AMEEICAN   LAW  EEAL   ESTATE  AGENCY. 

25  Md.  480;  Jungblui  v.  Gindra,  118  N.  Y.   S.  942;  Soule  v. 
Daring,  87  Me.  365,  32  A.  998.     Compare  Sec.  581. 

Securing  a  purchaser  whose  name  is  concealed  from  the  owner 
of  the  property  is  insufficient  to  entitle  the  broker  to  commis- 
sions. Hayden  v.  Grillo,  35  Mo.  App.  647;  Sharpley  v.  Moody, 
44  S.  650,  152  Ala.  549;  Nance  v.  Smythe,  118  Tenn.  349,  99 
S.  W.  698;  Wiggins  v.  Wilson,  55  Fla.  346,  45  S.  1011;  Duclos 
v.  Cunningham,  102  N.  Y.  678,  6  N".  E.  790 ;  Mott  v.  Minor,  106 
P.  244,  11  Cal.  App.  774;  Adams  v.  Kerfoot,  189  111.  App.  211; 
Gilbert  v.  McCullough,  125  K  W.  173,  146  Iowa,  333;  Edwards 
v.  Laird,  134  P.  364,  22  Cal.  App.  398;  Henry  v.  Barker,  118 
P.  205,  61  Or.  276,  judg.  aff.  on  re.  122  P.  298,  61  Or.  276; 
Ebert  v.  Haskell,  104  N.  E.  556,  217  Mass.  209.  Compare  But- 
man  v.  Butman,  213  111.  104,  72  N.  E.  821;  Hovey  v.  Aaron,  113 
S.  W.  718,  133  Mo.  App.  573. 

The  task  of  a  broker  is  to  find  a  purchaser,  and  he  is  not 
under  any  obligation  to  disclose  to  his  principal  the  purchaser. 
Bassick  v.  Aetna  Explo.  Co.,  246  F.  974. 

Where  an  agent  does  not  disclose  his  agency  and  name  his 
principal,  he  becomes  himself  principal,  unless  the  fact  of  the 
agency  is  otherwise  known  to  the  other  party.  Wheeler  v.  Reed, 
36  111.  81 ;  Milliken  v.  Jones,  77  111.  372 ;  Warren  y.  Dickson,  27 
111.  115;  Merrill  v.  Wilson,  6  Ind.  416;  Pierce  v.  Johnson,  34 
Conn.  264;  McClellan  v.  Parker,  27  Mo.  162;  Royce  v.  Allen,  28 
Vt.  234. 

A  contract  for  the  sale  of  real  estate,  made  between  the  owner 
and  a  firm  of  real  estate  brokers  with  whom  the  owner  has  listed 
the  property  for  sale  is  valid  and  enforceable,  where  there  was 
no  fraud  or  deception  practiced,  and  the  brokers  fairly  stated 
to  the  owner  the  fact  that  they  did  not  purchase  for  themselves, 
but  on  an  order  from  another  broker  for  a  principal  whose  name 
they  were  not  at  liberty  to  disclose.  Woodward  v.  Davidson, 
150  Fed.  840;  reversed,  on  another  ground,  156  Fed.  915;  Grun- 
blatt  v.  Fox,  59  Pa.  Super.  Ct.  53. 

A  real  estate  broker,  having  a  customer  desirous  of  purchasing 
property  of  a  particular  character,  need  not,  before  entering  into 
negotiations  to  secure  the  agency  from  the  seller  to  procure  a 
purchaser,  disclose  the  facts  to  the  owner  that  he  has  a  customer 
and  that  he  will  probably  effect  a  sale,  no  relation  of  agency  ex- 


PRINCIPAL  AND  AGENT.  249 

isting  between  the  broker  and  the  customer.  Larson  v.  Thoma 
(Iowa  Sup.  '09),  121  N.  W.  1059. 

Agent  concealing  greater  price  obtained,  bound  to  pay  excess 
withheld  to  his  principal.  Borst  v.  Lynch,  110  N".  W.  1031,  133 
Iowa,  567;  Babcock  v.  De  Mott,  160  F.  882,  88  C.  C.  A.  64,  cer. 
den.  29  Sup.  Ct.  690,  212  U.  S.  582,  53  L.  Ed.  660. 

Where  an  agent  for  the  sale  of  land,  without  the  knowledge  of 
the  principal,  procures  a  third  person  to  assist  in  the  sale  for  a 
portion  of  the  commission,  such  third  person  can  not  himself 
purchase  the  land  and  turn  it  over  to  another  at  an  advanced 
price.  Fisk  v.  Waite,  99  P.  283,  53  Or.  142. 

An  owner  employed  a  broker  to  procure  a  purchaser  of  land  for 
$2,800  and  agreed  to  employ  no  other  agent.  The  broker  sub- 
mitted an  offer  of  $2,700,  without  disclosing  the  name  of  the 
proposed  purchaser.  The  offer,  after  some  delay,  was  rejected. 
The  broker  was  then  informed  that  because  of  recent  repairs  the 
price  was  $2,875.  Subsequently  the  proposed  purchaser  raised 
his  offer  to  $2,800,  and  the  broker  submitted  it,  without  disclosing 
the  name.  Subsequently  the  owner  conveyed  the  property  to  the 
proposed  purchaser  for  $2,800,  in  pursuance  of  negotiations  con- 
ducted by  another  agent;  the  owner  did  not  know  that  the  pro- 
posed purchaser  had  been  procured  by  the  broker.  Held,  that  the 
broker  was  not  entitled  to  commissions,  he  being  in  fault  in  not 
giving  the  name  of  the  proposed  purchaser  to  the  owner.  Gilbert 
v.  McCullough,  125  N.  W.  173,  146  Iowa,  333. 

Where  negotiations  for  the  sale  of  land  were  broken  off  for 
want  of  an  acceptable  offer,  and  not  to  save  commissions,  and 
owner,  in  subsequently  making  sale,  did  not  know  that  purchaser 
was  acting  for  the  person  procured  by  the  broker,  broker  held  not 
entitled  to  commission.  Treacy  v.  Oilman,  171  S.  W.  153,  161 
Ky.  513. 

Where  the  owner  of  real  estate,  which  he  has  listed  with  an 
agent  for  sale  for  a  definite  period,  sells  the  same  to  one  who  was 
induced  to  purchase  it  by  the  efforts  of  the  agent,  but  in  good 
faith  and  in  ignorance  of  those  efforts,  and  for  a  consideration 
less  than  given  the  agent,  he  is  not,  there  being  no  exclusive 
agency,  liable  for  a  commission  agreed  to  be  paid  for  the  produc- 
tion of  a  purchaser  ready,  able  and  willing  to  buy.  Quist  v. 


250  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Goodfellow,  110  K  W.  65,  99  Minn.  509,  8  L.  E.  A.  (N  .S.)  153, 
9  Ann.  Gas.  431. 

(The  following  cases  express  the  opposite  doctrine) : 

Where  a  broker  is  employed  to  procure  a  purchaser,  and  he  is 
the  procuring  cause,  he  can  not  be  deprived  of  his  commission 
merely  because  the  owner  making  the  sale  did  not  know  that  the 
broker  had  procured  the  purchaser.  Single  v.  Russell,  80  A.  164, 
114  Md.  418. 

Recovery  of  commissions  by  a  broker  is  not  dependent  upon 
knowledge  of  his  principal  that  the  buyer  came  to  purchase  in 
consequence  of  information  obtained  through  the  broker.  Mc- 
Lauglilin  v.  Campbell,  74  A.  530,  78  N.  J.  Law,  541. 

A  broker  who,  by  directing  attention  to  property,  interests  a 
party  who  refuses  to  negotiate  through  him,  is  not  entitled  to  a 
commission  if  the  principal,  in  good  faith,  thereafter  negotiates 
a  contract  on  the  direct  application  of  such  party.  Lord  v.  U.  8. 
Transp.  Co.,  128  N.  Y.  Sup.  451,  143  App.  Div.  437. 

Defendant  employed  plaintiff  to  sell  certain  coal  lands  for 
$250,000,  agreeing  to  pay  $10,000  commissions  in  case  a  sale  was 
effected  within  six  months  from  August  19,  1904,  and  that  if, 
during  such  time,  the  broker  named  to  the  defendant  a  probable 
purchaser,  and  the  property  came  under  such  purchaser's  control 
within  a  year  from  February  19,  1905,  the  broker  should  be  en- 
titled to  commissions.  The  plaintiff,  on  the  day  the  agreement 
was  made,  named  the  Ontario  &  Western  Railway  as  a  probable 
purchaser,  and  within  the  time  specified  the  land  was  sold  to  R, 
who  was  secretary  and  treasurer  of  the  Railroad  Company  and 
also  of  the  S.  Coal  Co.,  the  sale  having  been  made  through  B, 
who  was  attorney  for  both  companies.  R  thereafter  transferred 
the  property  to  the  S.  Coal  Co.,  all  of  the  stock  of  which,  except 
a  few  qualifying  shares,  were  owned  by  the  Railroad  Co.,  and  it 
was  also  shown  that  a  majority  of  the  Coal  Co/s  directors  were 
directors  of  the  Railway  Co.  Held,  that  the  property  was  sold 
to  the  Railway  Co.  within  the  terms  of  the  contract,  entitling 
plaintiff  to  commissions.  Langdon  v.  Taylor,  180  F.  385,  103 
C.  C.  A.  531. 

Where  an  owner  of  real  estate,  situate  in  a  district  within 
which  a  large  part  of  the  land  is  subject  to  ancient  covenants, 
employs  a  broker  to  secure  a  purchaser,  but  neglects  to  inform 


PBINCIPAL  AND  AGENT.  251 

the  broker  of  the  existence  of  the  restrictions  and  covenants  in 
his  chain  of  title;  unless  the  broker  asks  about  it,  the  conceal- 
ment of  the  owner  is  not  the  equivalent  of  a  fraudulent  conceal- 
ment of  the  covenants.  Ranger  v.  Leo,  121  N.  Y.  Sup.  328,  66 
Misc.  Rep.  144. 

Plaintiff,  a  broker  empowered  to  sell  land  for  defendant, 
showed  it  to  M.  &  B.,  brokers  of  plaintiff,  and  afterwards  to  M. 
&  S.,  and  discussed  with  them  the  terms  of  sale.  Soon  afterwards 
defendant  told  plaintiff  that  two  men  had  been  at  his  place,  but 
wanted  an  option  for  the  land;  told  him  one  of  them  was  B.,  and 
showed  him  the  card  of  M.  &  B.  which  they  had  left.  Plaintiff, 
either  not  knowing  the  names  of  the  men  to  whom  he  showed  the 
land  or  being  lacking  in  frankness,  made  no  claim  that  the  men 
who  had  been  there  were  his  parties,  but  disclaimed  knowledge  of 
them,  and  advised  defendant  to  give  them  an  option  at  the  time, 
and  afterwards  defendant  made  a  contract  of  sale  to  S.,  whereby. 
M.  &  B.  were  recognized  as  the  brokers  entitled  to  commissions. 
Held,  that  this  having  occurred  through  plaintiff's  fault,  he  was 
not  entitled  to  assert  a  right  to  commission,  though  on  the  day 
the  contract  of  sale  was  signed  he  presented  himself  and  claimed 
the  commission,  and  defendant,  in  the  presence  of  the  conflicting 
claims,  made  him  an  offer  of  a  certain  amount,  and  ended  the 
interview,  indicating  that  he  thought  plaintiff  had  earned  the 
commission,  and  that  he  was  willing  to  do  what  was  right. 
Courtney  v.  Rhodes,  133  N.  Y.  Sup.  363,  148  App.  Div.  799. 

Where  a  broker  employed  by  defendant  to  make  a  sale  for  a 
foreign  corporation  which  he  owned  concealed  the  fact  that 
eight-ninths  of  the  commission  was  to  be  paid  to  the  foreign 
corporation  agent  receiving  a  salary  and  commission  for  making 
such  sales,  he  was  not  entitled  to  commissions.  Chas.  F.  Gar- 
rigues  Co.  v.  International  Agr.  Corporation,  144  N.  Y.  Sup.  982, 
159  App.  Div.  577. 

In  an  action  by  brokers  for  a  share  in  the  profits  on  land  pur- 
chased by  defendants  from  the  broker's  principals,  evidence  held 
to  show  that  the  brokers  concealed  their  interest  in  the  purchase 
from  their  principals,  and  that  defendants  knew  of  such  conceal- 
ment. Fred  Brown  &  Co.  v.  Cash,  145  N.  W.  80,  165  Iowa,  221. 

Where  a  broker  who  was  employed  to  sell  property  on  com- 
mission was  unable  to  make  a  sale  to  a  prospective  purchaser, 


252  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

and  subsequently  the  owner  sold  directly  to  a  third  per- 
son who  secretly  acted  for  such  prospective  purchaser,  and 
though  such  purchaser,  on  direct  inquiry  from  the  owner,  dis- 
claimed the  desire  to  purchase,  the  broker  could  not  recover  com- 
mission from  the  owner  on  the  theory  that  the  sale  was,  in  fact, 
to  the  purchaser  procured  by  him,  where,  to  do  so,  would  necessi- 
tate the  adoption  by  the  broker  of  the  prospective  purchasers' 
method  of  obtaining  title  to  the  property  at  less  price  through 
concealment.  Ritch  v.  Robertson,  106  A.  509,  —  Conn.  Sup.  — . 

Where,  when  an  owner  of  land  and  an  agent  commenced  their 
negotiations,  they  created  a  contract  of  agency  and  not  one  of 
sale  by  the  owner  to  the  agent,  the  agent,  by  no  act  of  his,  unex- 
plained to  the  owner,  could  change  the  contract,  and  when  he 
found  a  purchaser  it  was  his  duty  to  make  correct  representa- 
tions to  the  owner  as  to  the  price  he  was  to  receive  for  the  land 
and  failing  to  do  so  and  selling  for  more  that  he  represented  to 
the  owner,  he  is  responsible  for  the  sum  at  which  he  did  sell. 
Solmson  v.  Deese,  218  S.  W.  657,  —  Ark.  Sup.  — . 

In  a  real  estate  agent's  action  for  commission  on  a  sale  of  land, 
evidence  held  to  show  forfeiture  by  the  agent  of  his  right  to 
commission  for  services  in  negotiating  the  sale,  because  of  un- 
faithful conduct  in  first  secretly  closing  the  sale,  as  agent,  for 
$3,400,  and  then  representing  to  the  principal  that  he  could  sell 
for  $3,100.  Avery  v.  Baird,  188  P.  254,  —  Kan.  Sup.  — . 

Where  one  of  the  members  of  a  firm  of  brokers  engaged  to 
effect  an  exchange  of  lands  concealed  from  defendant  that  the 
party  with  whom  the  exchange  was  proposed  to  be  effected  was 
his  father-in-law,  the  relationship  raises  a  strong  suspicion  of 
want  of  good  faith  of  the  broker,  and  only  slight  circumstances 
are  necessary  to  surround  the  same.  Hume  v.  Baggott  &  Baggott, 
221  S.  W.  1002,  —  Tex.  Civ.  App.  — . 

Sec.  292.    Abandonment  of  employment  and  of  contract  by 
purchaser. 

Where  a  real  estate  agent  fails  to  sell  the  property  and  directs 
a  prospective  purchaser  to  trade  with  the  owner,  who  sells  the 
property,  relying  on  the  broker's  abandonment  of  the  employ- 
ment, the  broker  can  not  recover  commissions.  Enochs  v.  Pax- 
ion,  87  Miss.  660,  40  S.  14.  A  broker  employed  by  the  owner 


PBINCIPAL  AND  AGENT.  253 

of  land  to  secure  a  purchaser  for  it  produced  two  persons  who 
obtained  a  written  agreement  from  the  owner  to  sell  the  land 
to  them,  but  did  not  sign  the  agreement,  and  afterwards  aban- 
doned the  deal  by  refusing  to  take  a  deed.  Held,  that  the 
broker  was  not  entitled  to  a  commission.  Eampf  v.  Dreyer,  103 
N.  Y.  S.  962,  119  App.  Div.  134;  Massie  v.  Chatom,  127  P.  56, 
163  Cal.  772.  See  Sec.  33. 

A  sale  of  property  negotiated  by  a  broker  for  $38,000,  pro- 
vided for  the  payment  in  cash  of  $500,  a  payment  of  $4,500 
on  a  later  date,  when  the  deed  was  to  be  delivered,  and  a  mort- 
gage for  the  remainder  given,  together  with  a  bond  for  improve- 
ments to  be  placed  on  the  property  by  the  purchaser;  on  the 
date  when  the  deed  was  to  be  given  the  purchaser  was  unable 
to  comply  with  the  contract,  but  paid  $3,000,  and  further  time 
was  granted ;  a  few  months  later  the  purchaser,  still  being  unable 
to  comply  with  the  contract,  gave  his  note  to  the  vendor  for 
$2,000,  and  the  contract  was  cancelled.  Held,  that  the  broker 
was  not  entitled  to  commissions.  Riggs  v.  Turnbull,  105  Md. 
135,  66  A.  13,  8  L.  R.  A.  (N.  S.)  824.  A  broker  who  abandons 
his  employment  is  not  entitled  to  commissions  on  a  sale  after- 
wards made  to  his  customer  by  the  principal  or  through  an- 
other agent.  Everett  v.  Parrel,  11  Ind.  App.  185,  38  N.  E.  872 ; 
Watts  v.  Howard,  51  111.  App.  243;  Lipe  v.  Ludwick,  14  111. 
App.  372 ;  Singer,  etc.,  Stone  Co.  v.  Hutchison,  61  111.  App.  308 ; 
Rigdon  v.  Strong,  128  111.  App.  447 ;  Moore  v.  Cresap,  109  Iowa 
749,  80  N.  W.  399 ;  Cathcart  v.  Bacon,  47  Minn.  34,  49  N.  W. 
331;  Fairchild  v.  Cunningham,  84  Minn.  521,  88  N.  W.  15; 
Cullen  v.  Bell,  43  Minn.  226,  45  N.  W.  428 ;  Tooker  v.  Duck- 
worth,  107  Mo.  App.  231,  80  S.  W.  963;  Barnard  v.  Monnott, 
34  Barb.  (N.  Y.)  90;  Meyer  v.  Straus,  58  N.  Y.  S.  904,  42  App. 
Div.  613;  Getzler  v.  Boehm,  38  N.  Y.  S.  52,  16  Misc.  390; 
Bouscher  v.  Larkins,  84  Hun  288,  32  N.  Y.  S.  305;  Hay  v. 
Plait,  21  N.  Y.  S.  362,  66  Hun  488;  Marcus  v.  Kenneally,  43 
N.  Y.  S.  1056,  19  Misc.  517;  Halley  v.  Townsend,  2  Hilt.  (N.  Y.) 
34;  Miller  v.  Vining,  98  N.  Y.  S.  466,  112  App.  Div.  304;  Lewis 
v.  Manson,  61  S.  835,  132  La.  817;  Haines  v.  Wooster,  133  P. 
998,  22  Cal.  App.  197;  McCombs  v.  Moss,  181  S.  W.  907,  121 
Ark.  533 ;  Hume  v.  Boz  Co.,  204  S.  W.  673,  —  Tex.  Civ.  App.  — . 
See  also  Sec.  558. 


254:  AMERICAN  LAW  SEAL  ESTATE  AGENCY. 

A  mere  refusal  by  the  broker,  at  the  request  of  the  purchaser, 
to  again  see  the  seller  and  endeavor  to  obtain  a  lower  price,  does 
not  constitute  an  abandonment  of  his  emplo}Tnent,  or  bar  com- 
missions on  a  sale  afterward  made  by  the  owner  to  such  custo- 
mer. McCormacTc  v.  Henderson,  100  Mo.  App.  647,  75  S.  W.  171 ; 
Parks  v.  Sullivan,  152  S.  W.  704,  —  Tex.  Civ.  App.  Where  the 
owner  of  property  employed  a  broker  to  sell  it,  and  after  a 
month  or  two  it  was  agreed  that  the  broker's  authority  should 
cease,  and  three  or  four  years  after  the  owner  sold  the  property 
to  one  with  whom  the  broker  had  negotiated  with  two  years  prior 
thereto,  he  was  not  entitled  to  commissions,  although  he  called 
the  attention  of  the  purchaser  to  the  property  and  introduced 
him  to  the  owner.  Staehlin  v.  Kramer,  118  Mo.  App.  329,  94 
S.  W.  785. 

In  order  to  constitute  abandonment  of  negotiations  between  a 
broker  and  a  prospective  purchaser  so  as  to  defeat  recovery  of 
commissions,  mere  discontinuance  for  a  short  time  is  insufficient, 
but  the  evidence  also  must  show  an  abandonment  of  all  intention 
of  purchasing  the  property.  Rasar  v.  Johnson  &  Spurling,  176 
111.  App.  340. 

Where  broker,  without  disclosing  to  employer,  agreed  for  com- 
missions with  person  who  desired  to  exchange  farm,  which  was 
subsequent  to  beginning  of  negotiations  between  such  person  and 
his  own  employer,  arrangement  may  be  regarded  as  abandonment 
of  agency.  Whittle  v.  Klipper,  105  N.  W.  425 ;  —  Iowa  Sup.  — . 

Where  broker  employed  to  sell,  after  principal  had  opened  ne- 
gotiations for  exchange,  agreed  with  hostile  agents  to  pool  com- 
missions, arrangement  may  be  regarded  as  abandonment  of 
agency.  Id. 

Real  estate  broker  attempted  by  indirect  and  detestable  means 
to  become  purchaser  himself  of  property  which  he  has  undertaken 
to  sell  as  agent,  is  equivalent  to  a  renunciation  of  the  agency,  and 
nothing  short  of  an  unequivocal  recognition  of  the  existence  of 
the  agency  by  the  parties,  with  full  knowledge  of  the  facts,  can 
re-establish  agency.  Prouty  v.  Blanchard,  106  A.  831,  —  Vt.  — . 

The  fact  that  when  a  principal  tendered  her  broker  a  deed  to 
lots  conveyed  to  her  by  him,  and  demanded  payment  of  money 
retained  by  such  broker  from  the  proceeds  of  land  sold  by  him 
for  her,  she  made  no  mention  of  furniture  included  with  a  lot 


PHINCIPAL  AND  AGENT.  255 

conveyed  to  her,  does  not  invalidate  the  rescission,  where  the 
broker  refused  to  rescind.  Puffer  v.  Bradley,  181  P.  1,  —  Or. 
Sup.  — . 

Whether  a  broker  abandoned  his  contract  was  largely  a  ques- 
tion of  intention  to  be  inferred  from  the  facts  and  circumstances 
proved.  Bradley  v.  Blandin,  110  A.  309,  —  Vt.  Sup.  — . 

Sec.  293.    Alterations  made  in  written  instruments. 

Where,  after  a  contract  of  sale  was  signed  by  the  vendor,  the 
purchaser  made  material  alterations  and  then  signed  it,  and  the 
vendor  refused  to  re-execute,  there  was  no  meeting  of  minds 
and  the  broker  can  not  recover  commissions.  Bruce  v. 
Hurlbut,  66  N.  Y.  S.  1127,  54  App.  Div.  616.  See  also 
Sec  33.  A  contract  for  the  sale  of  land  was  executed  by 
the  owner  and  left  with  his  agent  for  the  sale  of  such 
land  for  delivery  to  the  purchaser;  the  agent  altered  the 
instrument  by  substituting  the  name  of  another  person, 
changed  both  the  consideration  and  the  rate  of  interest, 
and  delivered  it  to  such  other  person.  Held,  that  the  contract 
so  delivered  was  not  the  contract  of  the  owner.  Ballon  v.  Berg- 
vendsen,  9  N.  D.  285,  83  N.  W.  10;  Campbell  v.  Chase,  96  P. 
959,  78  Kan.  593.  See  also  Sec.  55. 

Sec.  294.    Adverse  interests. 

An  agent  in  charge  of  real  estate  can  not  acquire  a  tax-title 
adverse  to  his  principal,  who  has  failed  to  furnish  him  with 
means  to  pay  the  taxes,  and  the  burden  is  on  the  agent  to  show 
that  his  agency  had  terminated  when  he  acquired  the  title.  Bow- 
man v.  Officer,  53  Iowa,  640.  See  also  Sec.  345. 

A  broker  employed  to  negotiate  a  sale  may  acquire  an  inter- 
est in  the  property  after  a  sale  has  been  made,  if  his  former 
agency  in  no  way  entered  into  or  influenced  the  subsequent  trans- 
action. Chester  v.  Campbell,  109  A.  901,  —  N.  J.  Ct.  of  Err. 
and  App.  — . 

Sec.  295.    Betrayal  of  trust. 

If  a  real  estate  agent  authorized  to  sell  land  at  a  given  price, 
three  years  after,  when  the  value  has  greatly  advanced,  and  is 


256  AMERICAN   LAW  REAL   ESTATE   AGENCY. 

rapidly  rising,  sells  the  same  at  the  price  named,  and  at  a  great 
sacrifice,  without  informing  his  principal  of  the  rise  in  value, 
this  would  be  such  a  fraud  upon  the  principal  that  a  court  of 
equity  would  refuse  to  enforce  a  conveyance  to  the  purchaser. 
Proudfoot  v.  Wightman,  78  111.  553. 

In  an  action  by  a  broker  for  commissions  for  procuring  a 
purchaser,  the  broker  made  no  pretence  that  defendant  em- 
ployed him,  but  asserted  that  he  was  acting  at  the  instance 
of  the  purchaser ;  notwithstanding  the  express  unwillingness  of 
defendant  to  make  the  sale,  he  testified  that,  without  the  knowl- 
edge of  defendant,  he  called  the  purchaser's  attention  to  his 
right  to  purchase  as  stipulated  in  the  lease;  that  defendant  re- 
fused to  convey,  claiming  that  she  was  not  bound  by  the  lease, 
that  the  broker  urged  the  purchaser's  claim,  and  that  defendant 
yielded  when  advised  by  her  counsel  so  to  do.  Held,  that  the 
broker  was  not  entitled  to  commissions.  Morris  v.  Poundt,  99 
N.  Y.  S.  844,  51  Misc.  6;  Knake  v.  Griswold,  93  N.  Y.  S.  459, 
104  App.  Div.  137 ;  Hort en  v.  Loffler,  31  App.  D.  C.  362. 

In  an  action  by  a  grantor  of  realty  to  set  aside  a  sale,  on  the 
ground  that  the  agent  employed  by  her  to  secure  a  purchaser, 
in  fact  purchased  the  property,  while  she  thought  the  sale  was 
being  made  to  another;  it  appeared  that  the  agent  had  induced 
her  to  sign  a  contract  of  purchase  with  such  other  party,  the 
agent  agreeing  to  execute  with  the  other  a  bond  accompanying 
a  mortgage  which  was  to  be  given  to  the  grantor ;  subsequently, 
a  deed  was  given  running  to  the  agent;  the  bond  was  signed  by 
the  agent  and  the  other,  and  the  mortgage  signed  by  the  agent 
alone  was  kept  by  him  for  the  purpose  of  record;  after  the 
grantor  learned  that  the  deed  ran  to  the  agent  she  informed 
him,  on  the  payment  of  the  interest  on  the  purchase  money 
and  mortgage  given  by  him,  that  she  would  put  the  money  in 
bank  until  she  got  her  property  back,  and  stated  that  she  was 
going  to  consult  a  lawyer.  Held,  that  the  acceptance  of  the 
money  did  not  constitute  a  ratification  of  the  transaction.  Clark 
v.  Bird,  72  N.  Y.  S.  769,  66  App.  Div.  284. 

Where  defendants,  land  brokers,  having  option  on  land,  induced 
plaintiff  to  purchase  land  at  what  they  represented  to  be  option 
price,  but  which,  in  fact,  was  in  excess  thereof,  under  a  contract 
whereby  brokers  were  to  use  their  best  efforts  to  resell  land,  and 
upon  sale  were  to  share  in  the  profits,  and  where  defendants 


PRINCIPAL  AND  AGENT.  257 

having,  without  plaintiff's  knowledge,  received  the  difference  be- 
tween the  option  and  purchase  price,  for  more  than  nine  years 
made  no  substantial  effort  to  procure  a  purchaser,  they  were 
guilty  of  laches.  Armstrong  v.  Lownsbery,  Simmons  &  Co.,  173 
N.  W.  890,  --  Iowa  Sup.  — . 

Sec.  295a.    Discharging  trust  by  returning  earnest  money. 

It  is  not  a  breach  of  trust  for  a  broker  to  return  earnest 
money  to  procured  purchaser,  when  sale  is  not  consummated  for 
failure  of  owner  to  make  a  good  title.  Badeaux  v.  EoJirer,  182 
111.  App.  114. 

Sec.  296.    Collusion. 

In  an  action  for  a  broker's  services,  an  answer  alleging  that 
the  proposed  purchaser  was  plaintiff's  uncle,  and  that  they 
entered  into  collusion,  whereby  the  uncle  was  to  pretend  to 
defendant  that  he  was  ready  and  willing  to  purchase  the  lands 
and  pay  for  the  same  in  cash,  and  that  defendant,  under  the 
belief  that  the  proposed  purchaser  was  acting  in  good  faith 
fixed  a  day  and  place  for  the  execution  of  the  deed,  when 
plaintiff  and  his  uncle  questioned  the  description  for  the  pur- 
pose of  delay,  and  that  before  the  adjourned  day  fixed  for  the 
execution  of  the  deed,  defendant  was  informed  that  the  pro- 
posed purchaser  would  not  take  the  land  until  he  had  had  an 
opportunity  to  reinspect  it,  which  he  never  did,  states  a  suffi- 
cient defense.  McAfee  v.  Bending,  36  Ind.  App.  628,  76 
N.  E.  412. 

Where  throughout  the  transactions  involving  the  sale  of  de- 
fendant's property  by  plaintiff,  a  broker,  defendant  believed 
that  she  was  dealing  with  the  purchaser  alone,  to  whom  her 
written  contract  of  sale  was  executed  and  delivered,  the  facts 
that  immediate  assignment  was  made  by  the  purchaser  to  an- 
other, followed  by  the  procurement  from  defendant  of  a  written 
ratification,  with  a  modification  giving  to  the  assignee  the  right 
to  a  conveyance,  and  the  payment  by  such  assignee  of  the  pur- 
chaser's check,  given  in  part  payment  of  the  purchase  price, 
were  circumstances  tending  to  support  her  claim  that  the  con- 
tract was  procured  through  the  misrepresentations  of  all  of  the 


258  AMEBICAN   LAW   KEAL   ESTATE   AGENCY. 

parties  acting  in  concert.  Eurinsky  v.  Lynch,  201  Mass.  28,  87 
ST.  E.  70. 

It  is  immaterial  to  a  real  estate  agent's  right  to  commission 
on  a  sale  procured  by  him  that  he  did  not  obtain  an  offer  for 
his  principal  on  terms  as  good  as  those  on  which  the  sale  was 
made,  where  the  buyer  and  the  seller  colluded  together  to  deprive 
the  broker  of  his  right  to  commission.  Lipscomb  v.  Mastin,  125 
S.  W.  1177,  142  Mo.  App.  228. 

Where  a  broker  brought  about  an  exchange  of  lands  between 
plaintiff  and  defendant,  and  by  collusion  between  broker  and  de- 
fendant misrepresented  the  contract  to  plaintiff,  who  could  not 
read  or  write,  plaintiff  was  entitled  to  rescind  the  contract, 
whether  or  not  the  broker  was  his  agent.  Stelter  v.  Fowler,  113 
P.  1096,  62  Wash.  345,  mot.  to  mod.  judg.  den.,  114  P.  879,  62 
Wash.  345. 

In  an  action  by  a  broker  to  have  a  lien  declared  on  land  for  a 
certain  commission,  on  the  ground  that  the  transfer  of  the  land 
was  collusive,  and  for  the  purpose  of  barring  him  of  his  commis- 
sion, the  burden  was  upon  the  broker  to  show  concerted  action 
and  collusion  on  the  part  of  the  grantee  and  other  defendants, 
the  broker's  claim  being  that  the  grantee  was  purchasing  for  an- 
other, a  transfer  to  whom  would  entitle  the  broker  to  a  commis- 
sion. Sanders  v.  Berry,  214  S.  W.  58,  —  Ark.  Sup.  — . 


CHAPTER  II. 


SECTION.  SECTION. 

297.  Deposits.  301.    Clerks. 

298.  Deceit.  302.    Conduct  of  broker. 

299.  Action  for  damages.  302a.  Conduct  of  owner. 

300.  Measure  of  damages. 


Sec.  297.    Deposits. 

A  real  estate  broker  employed  to  find  a  purchaser  of  land  at  a 
designated  price,  under  an  agreement  whereby  the  owner  is  to 
furnish  a  perfect  abstract  of  title  on  a  deposit  of  ten  per  cent, 
of  the  price  by  the  purchaser  has  earned  his  commissions  when 
he  produces  a  purchaser  willing  to  buy  on  the  prescribed  terms, 
and  where  the  owner  afterwards  induces  his  title  to  be  rejected 
for  the  purpose  of  defeating  the  sale,  the  broker's  return  of  the 
deposit  in  compliance  with  the  contract  of  sale,  though  without 
the  owner's  knowledge,  does  not  affect  his  right  to  his  commis- 
sion. Phelps  v.  Preuesch,  83  Cal.  626,  23  P.  1111.  A  real 
estate  broker  acting  for  a  vendor  is  entitled,  in  the  absence  of 
a  contract  to  the  contrary,  to  a  commission  on  a  deposit  made 
by  the  prospective  purchaser  and  forfeited  by  him.  Pierce  v. 
Powell,  57  111.  323;  Gilder  v.  Davis,  137  N.  Y.  504,  33  N.  B. 
590,  20  L.  R.  A.  398 ;  Bowersox  v.  Hall,  73  Kan.  99,  84  P.  557. 

See  also  Sees.  470,  570,  506. 

Under  a  contract  of  sale  requiring  earnest  money  payment  to 
be  placed  in  escrow  until  title  was  approved,  check  by  broker  was 
deposited;  held,  sufficient  deposit  if  drawn  on  a  fund  on  which  he 
had  the  right  to  draw  a  check,  and  that  it  was  a  payment  of  the 
amount  thereof.  Henderson  &  Grant  v.  Gilbert,  171  S.  W.  304, 
—  Tex.  Civ.  App.  — . 

A  broker's  receipt  for  earnest  money  reciting  payment  of 
$1,000  as  earnest  of  purchaser's  intention  to  purchase  real  estate 
described  at  the  agreed  price  of  $45,000,  balance  payable,  cash  on 
delivery  of  clear  deed  and  abstract,  purchaser  to  pay  taxes,  as- 
sessments and  costs,  and  in  case  of  failure  to  forfeit  deposit 

259 


260  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

money,  signed  by  owner  only,  by  the  broker  as  agent,  was  not  an 
enforceable  contract  of  sale  sufficient  to  constitute  performance 
of  the  broker's  contract  of  employment.  Henry  v.  Harker,  118 
P.  205,  61  Or.  276,  judg.  aff.  on  re.,  122  P.  298,  61  Or.  276. 

Eelease  of  both  parties  to  a  contract  for  a  sale  of  land  secured 
by  plaintiffs  as  brokers,  which  contract  had  never  become  effective 
by  reason  of  the  buyer's  failure  to  deposit  earnest  money  required 
as  a  condition  precedent  thereto;  the  contract  of  release  did  not 
so  affect  the  broker's  rights  as  entitled  them  to  recover  commis- 
sions. Oswald  Realty  Co.  v.  Broussard,  159  S.  W.  385,  —  Tex. 
Civ.  App.  — . 

Where  a  contract  between  intending  purchaser  and  brokers 
provided  for  refunding  of  the  earnest  money  if  the  title  should 
not  be  perfect,  and  for  forfeiture  to  the  seller  if  the  purchaser 
failed  to  comply  with  the  terms  of  sale,  and  that  the  sale  was 
subject  to  the  approval  of  the  owner,  and  that  it  would  be  ap- 
proved within  ten  days  or  the  earnest  money  refunded.  The 
owner,  on  executing  the  contract,  became  entitled  to  the  earnest 
money  payment  constituting  part  of  the  price,  and  the  purchaser 
could  not  thereafter  recover  such  payment  from  the  brokers, 
whether  he  knew  prior  to  such  approval  or  not,  and  whether  the 
brokers  were  his  agents  or  the  owner's  agents.  Massey  v.  Butts, 
221  S.  W.  153,  —  Mo.  App.  — . 

Sec.  298.    Deceit. 

Where  plaintiff  purchased  property  from  defendant,  a  broker, 
for  $7,000,  upon  his  representation  that  the  owner  would  not 
sell  it  for  less  than  that  price,  when  the  fact  was  that  the  owner 
had  consented  to  sell  it  for  $6,500,  and  the  broker's  commission, 
plaintiff  can  recover  in  an  action  in  deceit,  $500,  less  a  reason- 
able commission  to  defendant.  Kice  v.  Porter,  21  Ky.  L.  R. 
871,  22  Ky.  L.  R.  1704,  53  S.  W.  285,  61  S.  W.  266. 

Defendant  asked  a  real  estate  broker  to  obtain  a  purchaser 
for  his  farm,  which  the  broker  did,  at  the  same  time  demanding 
large  commissions,  which,  he  said,  were  to  be  divided  between 
him  and  the  purchaser's  broker,  as  the  purchaser  knew;  this 
was  satisfactory  to  defendant,  but  he  wrote  as  to  the  commis- 
sion to  the  purchaser,  who  thereupon  refused  to  sign  the  con- 
tract of  sale.  Held,  that  the  broker  did  not  procure  a  pur- 


PRINCIPAL  AND  AGENT.  261 

chaser  on  defendant's  terms,  and  was  not  entitled  to  commis- 
sions. Smith  v.  Nicoll,  36  N.  Y.  S.  347,  91  Hun  173,  affirmed 
158  N.  Y.  696,  53  N.  E.  1132. 

Where  a  real  estate  broker,  in  order  to  make  a  sale,  repre- 
sented that  an  assessment  for  a  sewer  in  process  of  construc- 
tion near  the  property  had  been  paid,  the  owner  is  not  liable 
therefor  in  an  action  for  deceit,  in  the  absence  of  evidence  that 
he  gave  the  broker  authority  to  make  such  representation,  it 
not  being  within  the  ordinary  scope  of  his  employment.  Brack- 
man  v.  Leighton,  60  Mo.  App.  38. 

An  innocent  vendor  can  not  be  sued  in  tort  for  the  fraud  of 
his  agent  in  effecting  a  sale;  in  such  a  case  the  vendee  may 
rescind  the  contract  and  reclaim  the  money  paid,  and  if  not 
repaid  may  sue  the  vendor  in  assumpsit  for  it,  or  he  may  sue 
the  agent  for  the  deceit.  Kennedy  v.  McKay,  43  N.  J.  L.  288. 

Plaintiff  employed  defendant  as  its  agent  to  buy  a  mine  for 
not  to  exceed  $150,000.  Defendant  actually  bought  it  for 
$90,000,  concealed  the  fact  from  plaintiff,  fraudulently  caused 
it  to  be  conveyed  to  a  confederate  and  by  representing  that  he 
had  bought  it  for  $150,000,  induced  plaintiff  to  execute  a  con- 
tract with  the  confederate,  agreeing  to  buy  the  mine  at  that 
price,  $20,000  to  be  paid  in  cash,  $90,000  in  one  year,  and 
$40,000  in  eighteen  months;  plaintiff  paid  the  cash  payment, 
and  after  obtaining  a  reduction  of  the  remainder  to  $110,000, 
paid  that  sum  also;  thus,  by  reason  of  defendant's  fraud  paying 
$40,000  more  than  the  actual  price  for  which  defendant  pur- 
chased for  his  account.  Held,  that  these  facts  alleged  and  found 
sufficiently  made  out  a  case  of  damages  for  deceit  and  fraud, 
and  entitled  plaintiff  to  a  judgment  recovered  for  $40,000.  Gt. 
Western  Gold  Co.  v.  Chambers  (Cal.  Sup.  '09),  101  P.  6. 

A  broker  employed  by  the  owner  to  procure  a  purchaser  of 
real  estate  was  entitled  to  retain  for  his  services  the  sum  in 
excess  of  $10,000  realized  from  a  sale.  The  broker  fraudulently 
induced  a  purchaser  to  purchase  the  land  for  $12,500,  and 
fraudulently  induced  the  purchaser  to  sell  his  own  land  to  the 
broker,  who  agreed  to  pay  $2,527  to  the  owner  to  apply  on  the 
price  of  the  land  purchased  from  the  owner.  Held,  that  the  pur- 
chaser, electing  to  rescind  the  contract  on  the  ground  of  fraud, 
could  not  recover  the  $2,500  as  an  element  of  damages  in  an  ac- 


262  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

tion  of  deceit  against  the  broker.  Gordon  v.  Rhodes  (Tex.  Civ. 
App.  '09),  117  S.  W.  1023.  Certified  questions  answered,  116 
S.  W.  40.  See  also  Sec.  607. 

A  contract  of  sale  of  lands  between  a  broker  and  his  principal 
held  unenforceable  for  fraudulent  representations  inducing  it. 
Merritt  v.  Hummer,  122  P.  816,  21  Colo.  App.  568;  Fishback  v. 
Vining,  125  P.  559,  22  Colo.  App.  419. 

Where  a  broker  procured  from  his  principal  a  binding  agree- 
ment through  the  broker's  misrepresentation  that  a  third  person 
was  satisfied  with  the  sale;  held,  not  to  make  a  contract  of  sale 
binding  on  the  principal.  Harrington  v.  Dodge,  103  N.  E.  919, 
216  Mass.  461. 

Sec.  299.    Action  for  damages. 

Where  a  broker  is  employed  to  purchase  or  to  make  a  sale  of 
lands  and  the  principal  refuses  to  accept  or  to  part  with  the 
property,  as  the  case  may  be,  or  otherwise  breaks  the  contract  of 
employment,  the  broker  may  maintain  an  action  for  a  breach  of 
the  contract.  Atkinson  v.  Peck,  114  N.  C.  597,  19  S.  E.  628; 
Roberts  v.  Barnes,  1  Cab.  &  E.  (Eng.),  336;  Burnet  v.  Edling, 
19  Tex.  Civ.  App.  711,  48  S.  W.  775;  Henry  &  Sons  v.  Colo.  F.  & 
L.  S.  Co.,  164  P.  986 ;  Briggs  v.  Hall,  141  P.  1067,  24  Cal.  App. 
586;  Goldman  v.  Weisman,  143  N".  W.  983,  123  Minn.  370;  Rob- 
inson v.  Oklahoma  Fire  Ins.  Co.,  155  P.  202,  —  Okl.  Sup.  — ; 
Harris  v.  Van  Vranken,  155  N.  W.  65,  —  N.  D.  Sup.  — ;  Ail. 
Coast  Realty  Co.  v.  Townsend,  98  S.  E.  681,  --  Va.  Sup.  — . 

Where  an  owner  of  land,  after  he  agreed  with  a  broker  to  ex- 
tend the  time  for  a  sale,  and  after  he  knew  the  broker  had  pro- 
cured a  purchaser  for  a  later  date,  revoked  the  authority  of  the 
broker  to  sell,  and  then  sold  to  the  person  procured  by  the  bro- 
ker, he  is  liable  to  the  broker  for  such  damages  as  arose  from 
such  unlawful  revocation  of  the  agency.  Hancock  v.  Stacey,  125 
S.  W.  884,  103  Tex.  219,  —  Civ.  App.  — ,  116  S.  W.  117,  aff. 

Where  an  owner  breached  its  contract  to  pay  brokers  instal- 
ments on  commissions  as  lands  are  sold,  the  brokers  were  relieved 
from  continuing  to  make  sales,  and  were  entitled  to  commissions 
on  sales  made,  though  they  were  not  prevented  from  making  fur- 
ther sales  by  the  owner's  refusal  to  make  the  payments.  Tilton 
v.  James  L.  Gates  Land  Co.,  121  N.  W.  331,  140  Wis.  197. 


PRINCIPAL  AND  AGENT.  263 

Although  as  a  general  rule  a  contract  with  an  agent  to  sell 
land,  within  a  certain  time,  is  revocable  before  the  termination 
of  the  time  specified,  yet  if  the  agent  has  rendered  service  in  re- 
lation thereto,  he  may  sue  the  principal  for  a  breach  of  the  con- 
tract and  recover  damages.  Green  v.  Cole,  103  Mo.  70,  15  S.  W. 
317;  DurJcee  v.  Gunn,  41  Kan.  496,  21  P.  637;  Bathrilc  v.  Coffin, 
43  K  Y.  S.  313,  13  App.  Div.  101;  Rowan  v.  Hull,  55  W.  Va. 
335,  47  S.  E.  92;  Tappin  v.  Henley,  11  Weekly  Eep.  (Eng.),  466; 
Anderson  v.  Shafer,  124  P.  423,  87  Kan.  346 ;  Johnson  &  Moran 
v.  Buchman,  116  S.  W.  875,  54  Tex.  Civ.  App.  328;  Williamson 
Real  Estate  Co.  v.  Sasser,  103  S.  E.  73,  —  K  C.  Sup.  — .  See 
also  Sec.  22. 

Where  a  real  estate  agent  having  a  contract  to  sell  lands  to  a 
third  person  at  an  advanced  price  purchases  the  land  himself 
from  his  principal,  without  disclosing  to  him  that  such  is  the  con- 
tract, which  he  thereafter  completes,  renders  himself  liable  to  his 
principal  in  damages.  Kingsley  v.  Wheeler,  95  Minn.  360,  104 
K  W.  543.  See  also  Sec.  290. 

An  owner  of  land,  which  his  agent  has  sold,  can  not  recover 
damages  from  that  agent  for  fraud,  where  such  owner,  knowing 
of  a  resale  by  the  vendee  and  suspecting  his  agent  of  connivance 
in  said  resale  at  an  advanced  price,  refuses,  while  the  contract 
is  still  executory,  to  avail  himself  of  the  usual  means  of  ascer- 
taining the  truth,  and,  nevertheless,  evecutes  the  contract.  Ber- 
tleson  v.  Vanderhoff,  96  Minn.  184,  104  N.  W.  820.  See  also 
Sec.  24. 

Where  a  contract  employing  a  broker  to  procure  a  purchaser 
stipulates  that  the  commissions  shall  be  paid  only  when  a  sale 
is  effected,  the  broker  is  not  entitled  to  commissions  unless  a 
sale  is  effected,  though  he  may  be  entitled  to  damages  for  the 
wrongful  act  of  the  owner  in  preventing  a  sale.  McDermott  v. 
Mahoney  (Iowa  Sup.  '08),  115  N.  W.  32,  139  Iowa  292;  affirm- 
ing on  rehearing,  106  N.  W.  925. 

An  action  for  damages  will  lie  against  a  real  estate  agent 
delivering  a  contract  for  the  exchange  of  property  to  the  other 
party,  in  violation  of  the  principal's  instructions.  Hawes  v. 
Burkholz,  114  N.  Y.  S.  765.  See  also  Sec.  290. 

Where  a  real  estate  broker  is  employed  for  a  definite  period 
to  procure  a  purchaser  for  the  property  of  the  owner,  and  the 


264  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

"broker  is  discharged  without  cause,  before  the  expiration  of  the 
period,  or  is  not  permitted  to  undertake  the  performance  of 
the  contract,  the  owner  is  liable  to  the  agent  for  the  damages. 
Johnson  v.  Buchanan  (Tex.  Civ.  App.  '09),  116  S.  W.  875.  A 
broker  may  recover  anticipated  profits  as  damages  for  breach  of 
his  contract  of  employment.  Blumenthal  v.  Bridges  (Ark.  Sup. 
'09),  120  S.  W.  974. 

Where  the  buyer  of  real  estate  receives  a  deed  therefor,  with 
special  warranty  against  incumbrances,  and  pays  over  the  pur- 
chase price  to  the  brokers  of  the  seller,  the  buyer  can  recover  on 
such  warranty  from  the  seller,  where  it  develops  that  the 
brokers  thereafter  accounted  to  the  seller  for  the  difference 
between  an  existing  incumbrance  on  the  property  and  the  pur- 
chase price,  but  fraudulently  failed  to  pay  and  secure  a  re- 
lease of  such  incumbrance.  Bdbson  v.  Cox,  32  App.  D.  C.  542. 

Defendant  employed  plaintiff  to  procure  an  exchange  of 
land  of  defendant's  to  a  third  person.  It  was  orally  agreed 
that  the  third  person  should  pay  plaintiff  his  commission,  and 
the  contract  between  defendant  and  the  third  person  for  the 
exchange  was  also  oral.  Defendant  refused  to  consummate  the 
exchange  and  plaintiff  lost  his  commission.  Held,  that  as  the 
oral  contract  for  the  exchange  of  real  estate,  though  unenforce- 
able, under  the  statute  of  frauds,  may  be  lawfully  performed, 
the  fact  that  the  third  person  could  not  enforce  the  agreement 
did  not  deprive  plaintiff  of  his  action  for  damages  against  defend- 
ant for  the  loss  of  his  commissions.  Bird  v.  Blackwell  (Mo.  App. 
>09),  115  S.  W.  487. 

If  the  vendor's  broker  misrepresented  the  acreage,  and  the  pur- 
chaser relied  on  the  representations,  the  purchaser  can  recover 
compensation  for  any  material  shortage,  not  exceeding  the  price 
per  acre  paid.  Farris  v.  Gilder  (Tex.  Civ.  App.  '09),  115  S.  W. 
645. 

Where  defendant  agreed  to  purchase  certain  property  at  an 
agreed  price  if  plaintiff  would  procure  its  sale,  knowing  that 
plaintiff  would  receive  a  commission  from  the  owner,  and  there- 
fore refused  to  purchase,  plaintiff  could  recover  the  amount  of 
such  commissions.  James  v.  Home  of  the  Sons  and  Daughters 
of  Israel  153  N.  Y.  Sup.  169. 


\ 


PRINCIPAL  AND  AGENT.  265 

Where  defendant  employed  a  broker  to  procure  a  loan  for  him, 
agreeing  to  pay  5%  commission,  and  the  broker  applied  to 
plaintiff,  consenting  that  the  amount  of  plaintiff's  expenses 
should  be  deducted  from  the  commission  to  be  paid  to  him.  De- 
fendant, on  refusing  the  loan  which  plaintiff  was  ready  to  make, 
was  liable  to  plaintiff  for  such  expenses.  Title  Guaranty  &  Trust 
Co.  v.  Carroll,  129  N.  Y.  Sup.  919,  145  App.  Div.  926. 

Where  defendants,  acting  as  real  estate  brokers  at  the  time 
they  executed  an  option  authorizing  plaintiff's  agent  to  purchase 
a  large  tract  of  land,  acknowledged  that  they  had  no  authority  to 
sell  a  portion  of  the  land  contained  in  the  contract,  they  were 
guilty  of  legal  bad  faith  within  Code,  Art.  1934,  providing  that 
where  the  object  of  a  contract  is  anything  but  the  payment  of 
money,  the  damages  due  shall  be  the  amount  of  the  creditor's 
loss  of  the  profits  of  which  he  has  been  deprived,  and  in  case  the 
execution  of  the  contract  has  proceeded  from  fraud  or  bad  faith, 
the  debtor  shall  be  liable,  not  only  for  such  damages  as  were  or 
might  have  been  foreseen  at  the  time  of  making  the  contract,  but 
also  to  such  as  are  the  immediate  and  direct  consequence  of  the 
breach  of  contract,  so  that  plaintiffs,  having  been  compelled  to 
purchase  such  part  of  the  land  from  the  owner  at  a  higher  price 
than  that  specified  in  the  option,  were  not  limited  to  the  recov- 
ery of  the  difference  between  the  option  price  and  what  they  were 
compelled  to  pay.  Tulane  Ed.  F.  Admin,  v.  Baccich  &  De 
Montluzin,  56  S.  371,  129  La.  469. 

Where  an  agent,  with  authority  to  do  so,  executes  a  contract  to 
sell  land  in  the  name  of  his  principal,  and  the  principal  agrees  to 
complete  the  sale  "as  soon  as  my  wife  is  able  to  sign,"  and  then 
refuses  to  complete  the  transfer,  the  purchaser  can  recover  the 
resulting  damages  therefrom.  Whitehouse  v.  Gerdis,  145  N".  W. 
338,  95  Neb.  228. 

Real  estate  agent  employed  to  exchange  land  for  other  prop- 
erty, who  falsely  represented  that  other  property  listed  with  him 
was  worth  $1,500,  and  thereby  induced  an  exchange,  was  liable 
to  principal  in  damages.  Suderman  v.  Koch,  168  P.  906,  101 
Kan.  708. 

Under  agreement  between  defendant  and  third  party  providing 
for  an  exchange  of  deeds  to  realty,  and  an  agreement  by  defendant 
to  pay  plaintiff's  commissions  on  day  set  for  delivery,  the  com- 


266  AMERICAN  LAW  REAL   ESTATE  AGENCY. 

mission  was  earned  where  defendant  sued  third  party  for  breach 
of  contract  negotiated  by  broker  and  recovered  damages.  Haber 
v.  Goldberg,  105  A.  874,  —  N.  J.  Ct.  of  Err.  and  App.  — . 

A  purchaser  is  not  entitled  to  damages  against  a  broker  for 
misrepresentation  of  a  tract  of  land  received  in  exchange,  where 
purchaser  relied  upon  her  own  investigation  and  not  on  the  bro- 
ker's representations.  Myers  v.  Linebarger,  222  S.  W.  720,  — 
Ark.  Sup.  — . 

Sec.  300.    Measure  of  damages. 

A  real  estate  agent  who  undertakes  to  sell  the  realty  of  his 
principal  without  legal  authority  to  bind  such  principal,  does 
not  render  him  responsible  for  any  defect  in  the  title  of  the 
principal.  In  the  absence  of  evidence  of  other  damages  the 
measure  of  the  agent's  liability  to  the  purchaser  in  such  case 
is  the  excess  of  the  market  value  of  the  principal 's  title,  whether 
good  or  bad,  over  the  contract  price.  Gestring  v.  Fisher,  46 
Mo.  App.  603. 

In  an  action  against  an  agent  for  fraudulent  representations 
as  to  the  location  of  real  estate  sold  by  him  to  plaintiff,  after  a 
disaffirmance  of  the  contract,  the  measure  of  damages  is  the 
actual  loss  sustained,  and  not  the  difference  between  the  actual 
value  of  the  property  conveyed  and  the  price.  Roberts  v.  Hol- 
liday,  10  S.  D.  576,  74  N.  W.  1034;  Duncan  v.  Holder  (N.  M. 
'10),  107  P.  685. 

A  contract  authorized  the  plaintiffs  to  sell  a  tract  of  land  of 
seven  thousand  acres,  and  provided  that  the  tract  should  be  sub- 
divided, and  an  asking  price  agreed  on  for  the  smaller  tracts; 
plaintiffs  were  to  have  five  per  cent,  for  lands  sold  at  the 
minimum  price,  and  one-half  of  the  excess  for  those  sold  above 
that  price,  but  no  commissions  on  the  value  of  the  improve- 
ments ;  plaintiff  sold  and  defendant  conveyed  to  the  purchasers 
large  quantities  of  the  land,  but  he  revoked  the  contract  before 
all  the  land  had  been  surveyed  or  the  time  expired.  Held,  that 
it  was  not  contemplated  that  the  land  should  all  be  surveyed 
and  subdivided  before  sales  were  made,  and  the  fact  that  it 
had  not  all  been  surveyed  did  not  authorize  revoking  the  con- 
tract; it  appearing  that  plaintiff  would  probably  have  sold  all 
the  lands  within  the  time  limited,  their  damages  should  be  com- 


PRINCIPAL  AND  AGENT.  267 

puted  at  one-half  the  difference  between  what  the  lands  would 
have  brought  at  the  average  price  of  that  already  sold  and  the 
minimum  price,  excluding  the  two  hundred  acres  with  the  im- 
provements, and  deducting  the  probable  expense  of  selling  and 
the  amount  already  paid  by  defendant.  McLane  v.  Maurier,  28 
Tex.  Civ.  App.  75,  66  S.  W.  693,  1108. 

In  order  to  entitle  the  prospective  purchaser  of  a  lot  to  dam- 
ages from  an  agent  for  his  breach  of  his  contract  of  agency  to 
purchase  the  lot,  the  damages  must  be  such  as  are  the  probable 
and  natural  result  of  the  breach,  and  where  the  defendant  was 
to  purchase  the  lot  for  plaintiff  at  not  to  exceed  a  certain  price, 
and  purchased  it  at  a  less  price,  and  took  the  title,  in  his  own 
name  and  refused  to  transfer  it  to  plaintiff,  whose  purpose  in 
buying  the  lot  was  to  erect  a  sanitarium  thereon,  plaintiff  can 
not  recover  as  damages  the  difference  in  the  price  of  material 
and  labor  between  the  date  of  the  contract  and  the  time  of 
the  suit,  time  being  not  of  the  essence  of  the  contract,  and 
plaintiff  having  at  the  time  no  contract  for  the  building  at  a 
fixed  price,  and  there  being  no  allegation  or  proof  that  defend- 
ant knew  that  the  price  of  labor  and  material  was  going  up, 
or  that  plaintiff  was  bound  by  a  contract  to  build, -which  he  was 
to  perform  within  a  certain  time,  those  damages  are,  under  the 
circumstances,  too  remote  and  speculative  to  be  attributed  to 
defendant's  breach  of  the  contract.  Harrison  v.  Craven,  188 
Mo.  590,  87  S.  W.  962. 

In  an  action  for  damages  for  the  revocation  of  authority  to 
sell  land,  nothing  more  than  nominal  damages  can  be  recovered, 
when  the  agent  fails  to  show  that  he  could  have  made  a  sale 
on  the  principal's  terms.  Milligan  v.  Owens,  123  Iowa  285,  98 
N.  W.  792. 

In  the  case  of  a  breach  by  a  vendor  of  his  contract  to  con- 
vey, the  measure  of  plaintiff's  damages  is  the  amount  which  he 
would  have  received  as  compensation  had  defendant  complied 
with  his  contract.  Atkinson  v.  Peck,  114  N.  C.  597,  19  S.  E. 
628;  Young  v.  Metcalf  Land  Co.  (N.  D.  Sup.  '09),  122  N.  W, 
1101;  Harris  v.  Van  Vranlcen,  155  N".  W.  65,  32  N.  D.  238; 
Swartz  v.  Park,  159  S.  W.  338,  —  Tex.  Civ.  App.  — ;  Justy  v. 
Erro,  117  P.  575,  16  Cal.  App.  519;  Goldman  v.  Weisman,  143 
1ST.  W.  983,  123  Minn.  370;  Van  Patten  v.  Taber,  130  N.  Y.  Sup. 


268  AMEBICAN  LAW  EEAL  ESTATE  AGENCY. 

1055,  71  Misc.  Rep.  610;  Park  v.  Swartz,  222  S.  W.  156,  —  Tex. 
Civ.  App.  — .  Where  an  agent  in  completing  a  contract  for  his 
principal  for  the  sale  of  her  real  estate,  secures  the  agreed  com- 
pensation, with  the  exception  of  taking  a  different  security  for 
the  deferred  payment  amounting  to  $730  and  interest,  the  measure 
of  damages  resulting  to  the  principal  from  the  act  of  the  agent 
is  the  difference  in  value  between  the  security  contracted  for  and 
that  recovered,  not  exceeding  $730.  Lunn  v.  Guihrie,  88  N.  W. 
1060,  115  Iowa,  501;  Hindrick  v.  Brady  (S.  D.  Sup.  '09),  121 
K  W.  777. 

For  the  breach  of  a  contract  to  pay  a  real  estate  agent  a  speci- 
fied sum  as  commissions  for  finding  a  purchaser,  the  measure  of 
damages  is  the  commission  agreed  to  be  paid.  Tuffree  v.  Bind- 
ford,  130  Iowa,  532,  107  K  W.  425;  Davis  v.  Roseberry,  148  P. 
629,  95  Kan.  411.  Where  a  broker  employed  to  sell  land  was  to 
receive  as  his  compensation  anything  that  he  could  obtain  for  the 
land  above  a  specified  sum,  in  an  action  against  the  landowner 
for  failure  to  perform  the  contract  with  the  purchaser  produced 
by  plaintiff,  the  measure  of  damages  was  the  amount  of  the  com- 
missions earned  and  lost.  Young  v.  Ruhwedel,  119  Mo.  App. 
231,  96  S.  W.  228 ;  Canfield  v.  Orange,  13  N.  D.  622,  102  N.  W. 
313 ;  Jones  v.  Hedstrom,  131  P.  145,  89  Kan.  294.  The  measure 
of  damages  for  the  breach  of  a  contract  employing  a  broker  to 
sell  land  is  either  the  compensation  fixed  by  the  contract,  or  a 
reasonable  compensation  for  his  services.  Dal  v.  Fisher  (S.  D. 
Supreme  '06),  107  N.  W.  534;  Hancock  v.  Stacey  (Tex.  Sup. 
'10),  125  S.  W.  884;  Johnson  v.  Buchanan  (Tex.  Civ.  App.  '09), 
116  S.  W.  875 ;  Ga.  Iron  &  Steel  Co.  v.  Rogers,  Brown  &  Co.,  77 
S.  E.  213,  12  Ga.  App.  429;  E.  A.  Strout  Farm  Agency  v.  De 
Forrest,  183  N.  Y.  Sup.  119. 

The  expenses  incurred  by  the  broker  in  advertising  and  sell- 
ing a  client's  land  are  not  elements  of  damages,  in  an  action 
to  recover  commissions  alleged  to  have  been  lost  by  his  client's 
refusal  to  convey  to  the  purchaser  whom  the  broker  had  ob- 
tained, and  hence  the  admission  of  evidence  of  such  expenses  is 
prejudicial  error.  Burnet  v.  Edling,  19  Tex.  Civ.  App.  711, 
48  S.  W.  775.  In  an  action  by  a  real  estate  broker  for  com- 
missions, it  was  error  to  tell  the  jury,  in  answer  to  questions 
by  their  foreman,  that  they  were  not  bound  by  any  rule  in 


PRINCIPAL  AND  AGENT.  269 

fixing  damages,  as  the  court  should  have  charged  them  that  the 
rule  was  the  customary  commissions  in  such  cases,  or  if  the 
evidence  was  insufficient  on  that  ground,  what  would  be  a  fair 
compensation.  Hartman  v.  Warner,  75  Conn.  197,  52  A.  719. 
Defendant  prior  to  his  purchase  of  certain  land  contracted  to 
pay  plaintiff,  who  negotiated  the  purchase,  one-third  of  the 
profits  to  be  derived  from  a  subsequent  sale  thereof,  no  time 
for  the  sale  was  fixed,  and  defendant  having  died  without 
making  a  sale,  his  personal  representative  repudiated  the  plain- 
tiff's interest  and  refused  to  sell,  though  the  property  had 
largely  increased  in  value.  Held,  that  decedent  under  the  con- 
tract was  required  to  make  a  sale  within  a  reasonable  time,  and 
after  repudiation  of  plaintiff's  rights,  he  was  entitled  to  recover 
one-third  of  the  value  of  the  land  in  cash,  after  deducting  the 
purchase  price,  taxes  and  interest.  Kaufman  v.  Bailie,  46 
Wash.  248,  89  P.  548. 

Where  a  broker  employed  by  the  owners  of  land  to  effect  a 
sale  thereof,  pretending  to  act  for  the  principal,  made  a  con- 
tract to  sell  the  land  to  plaintiff's  assignor,  which  was  not  bind- 
ing on  the  owners,  and  plaintiff's  assignor  paid  $200  on  the 
contract,  plaintiff  can  recover,  in  an  action  for  damages  on  the 
broker's  warranty  of  authority  as  agent  to  sell.  Rowland  v. 
Hall,  106  N.  Y.  S.  55,  121  App.  Div.  459. 

Where,  in  an  action  for  a  division  of  a  broker's  commissions 
defendant  agreed  to  pay  plaintiff  one-half  of  the  commissions 
earned  on  the  sale,  and  defendant  admitted  receiving  $287.50, 
it  was  proper  for  the  court  to  assess  the  plaintiff's  damages  at 
one-half  of  such  sum.  McCleary  v.  Willis,  35  Wash.  676,  77 
P.  1073;  Jonston  v.  Porter,  131  P.  69,  21  Cal.  App.  97. 

In  a  broker's  action  to  recover  division  of  commissions,  held, 
only  entitled  to  recover  such  a  proportion  of  the  entire  commis- 
sion as  the  amount  of  land  he  was  empowered  to  exchange  bore 
to  the  whole  property  required  by  his  client  to  make  the  exchange. 
Vich  v.  Foote,  136  N.  W.  910,  155  Iowa,  664. 

Where,  in  an  action  by  a  broker  for  his  share  of  the  profits 
derived  from  a  sale  procured  by  him  of  a  mine  under  an  agree- 
ment to  divide  "in  such  proportion  as  would  be  just  and  right;" 
the  evidence  was  in  irreconcilable  conflict  as  to  the  customary 
division,  many  witnesses  testifying  that  the  usual  division  was 


270  AMERICAN  LAW   REAL  ESTATE  AGENCY. 

fifty  per  cent.,  while  others  testified  that  the  customary  division 
varied  from  two  and  one-half  to  ten  per  cent,  of  the  net  profits, 
a  decree  allowing  ten  per  cent,  was  proper.  Law  v.  Seeley,  37 
"Wash.  166,  79  P.  606. 

Where  a  broker  was  employed  to  sell  certain  land  for  $75,000V 
at  a  commission  of  $2,000,  and  after  he  had  interested  a  pur- 
chaser his  authority  was  revoked  and  the  land  was  sold  by  his 
employer  for  $65,000,  plaintiff  was  entitled  to  recover  only  his 
contract  commissions,  with  interest  thereon,  and  not  the  custom- 
ary commissions  or  reasonable  value  of  his  services.  McGovern 
v.  Bennett,  146  Mich.  558,  109  N.  W.  1055,  13  D.  L.  N.  853; 
Finck  v.  Pierce,  103  N.  Y.  S.  765,  53  Misc.  554. 

"Where  a  real  estate  agent  delivered  a  contract  for  the  ex- 
change of  property  to  the  other  party,  in  violation  of  his  prin- 
cipal's instructions,  the  damage  sustained  by  the  principal  in 
consequence  of  his  refusal  to  perform  the  contract,  and  the 
expense  of  defending  a  suit  by  the  other  party's  assignee  for 
breach  of  the  contract,  and  of  a  suit  by  the  agent  for  commis- 
sions, are  proper  elements  of  recovery.  Hawes  v.  Burkholz,  114 
N.  Y.  S.  765. 

Where  a  principal  makes  sales  of  land  within  the  time  for 
which  he  had  listed  it  with  a  broker,  the  measure  of  the  broker's 
recovery  is  the  profit  he  would  have  realized  if  he  had  been 
permitted  to  perform.  Blumenthal  v.  Bridges  (Ark.  Sup.  '09), 
120  S.  W.  974.  Contra,  Milligan  v.  Owens,  123  Iowa,  285,  98 
N.  W.  792.  Sec.  358. 

In  an  action  by  a  broker  for  compensation  for  procuring  a 
purchaser  before  his  authority  to  sell  was  wrongfully  revoked, 
where  the  jury,  on  sufficient  evidence,  awarded  the  same  amount 
that  the  parties  had  agreed  on  in  case  of  sale,  it  is  immaterial 
whether  the  contract  price  or  the  value  of  the  services  ren- 
dered should  have  been  applied  in  ascertaining  the  damages. 
Hancock  v.  Stacy  (Tex.  Sup.  '10),  125  S.  W.  884. 

Where  a  broker  sued  on  his  contract  for  commissions,  his  dam- 
ages were  limited  to  those  he  sustained  by  breach  of  the  con- 
tract, and  he  was  not  entitled  to  any  part  of  the  profits  made 
by  defendants  on  a  subsequent  sale  of  the  land.  Montgomery 
y.  Amsler  (Tex.  C.  A.  '09),  122  S.  W.  307. 


PRINCIPAL  AND  AGENT.  271 

Criterion  of  the  financial  ability  of  a  purchaser  procured  by 
brokers  to  meet  the  purchasing  is  not  his  ability  to  procure  the 
money  to  pay  for  the  land,  but  to  respond  in  damages  for  breach 
of  his  contract  to  purchase.  Goldsberry  v.  Eades,  142  S.  W.  1080, 
161  Mo.  App.  8. 

Where,  through  the  owner's  fault,  the  sale  is  not  completed,  the 
broker's  commission  is  the  value  of  his  services,  and  not  the  dif- 
ference between  the  stipulated  price  and  the  price  named  in  the 
contract  with  the  purchaser.  Sperry  Realty  Co.  v.  Merriam 
Realty  Co.,  150  1ST.  W.  785,  128  Minn.  217. 

If  defendant  refuses  to  settle  with  plaintiff  on  commission 
notes  for  mortgage  loan  procured  by  plaintiff  according  to  a  con- 
tract between  them,  plaintiff  is  entitled  to  recover  the  value  of 
the  notes  which,  prima  facie,  would  be  their  face  value.  Wade  v. 
Douglass,  143  S.  W.  830,  161  Mo.  App.  348. 

Where  defendant  placed  his  property  in  the  hands  of  plaintiff 
to  find  a  lessee  for  the  same,  and  plaintiff  introduced  parties  to 
defendant  to  whom  he  subsequently  leased  his  property  on  satis- 
factory terms,  plaintiff  would  be  entitled  to  the  value  of  her  ser- 
vices at  the  usual  rate  charged  by  brokers,  irrespective  of  any 
special  agreement  as  to  the  amount  of  her  compensation.  Kohen 
v.  Kieley,  129  N.  Y.  Sup.  353. 

A  broker  who  secures  a  tenant  for  a  term,  with  an  option  to 
renew  at  the  end  of  the  term,  is  entitled  to  commission  only  on 
the  rents  for  the  original  term.  Allwin  v.  Earth,  146  N.  Y.  Sup. 
960,  161  App.  Div.  568. 

The  commission  on  an  exchange  of  real  property  should  be 
based  on  the  actual  and  not  the  trade  value  of  the  property. 
Cook  v.  Gordon,  137  P.  782,  68  Or.  557. 

Where  a  broker  effects  a  sale  of  property  for  sum  named,  he 
is  entitled  to  his  commission  on  such  sum,  irrespective  of  the 
fact  that  there  was  a  mortgage  upon  the  property.  Peters  v. 
Holmes,  45  Pa.  Super.  Ct.  278. 

A  real  estate  broker  employed  to  sell  land  and  house  for  a 
fixed  term  is  not  entitled,  on  a  breach  of  the  contract,  to  recover 
commission  on  improvements  placed  upon  the  land  sold  by  the 
owner-,  that  not  being  within  the  contemplation  of  the  parties 
when  the  contract  was  made.  Hagan  v.  Nashville  Trust  Co.,  136 
S.  W.  993,  124  Tenn.  93. 


272  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Where  a  landowner  authorized  a  broker  to  sell  the  land  for  $4 
per  acre  net  to  such  owner,  and  the  owner,  with  knowledge  of 
the  fact,  sold  the  land  to  broker's  customer  for  $4,  the  broker 
could  only  recover  the  reasonable  value  of  his  services  in  the 
transaction.  Haile  v.  Keller,  163  S.  W.  373,  —  Tex.  Civ.  App.  — . 

A  broker  who  offers  to  a  prospective  purchaser  a  plat  of  lands 
he  had  for  sale,  at  the  same  time  making  an  agreement  for  a 
commission  to  be  paid  him  on  a  sale;  held,  limited  to  a  commis- 
sion on  the  land  shown  on  the  plat.  Cleveland-Cliffs  Iron  Co.  v. 
Gamble,  201  F.  329,  119  C.  C.  A.  567. 

Where  a  broker,  who  was  to  receive  all  over  an  agreed  price 
as  his  commission,  produced  a  purchaser  who  agreed  to  pay  an 
agreed  price,  and  to  pay  for  the  growing  fruit  in  addition,  but 
the  owner  refused  to  carry  out  the  contract,  the  measure  of  bro- 
ker's compensation  was  the  value  of  the  fruit.  Sill  v.  Ceschi,  140 
P.  949,  167  Cal.  698. 

Where  brokers  were  given  an  exclusive  agency  to  sell  lands  for 
$20,000  net,  and  entered  into  a  contract  to  sell  the  same  for  $26,- 
000,  and  the  owner  revoked  the  agency,  the  broker  is  entitled  to 
recover  the  damages  sustained,  and  not  the  $6,000  stipulated  in 
the  contract.  Williamson  It.  E.  Co.  v.  Sasser,  103  S.  E.  7i*,  — 
K  C.  Sup.  — . 

) 
Sec.  301.     Clerks. 

A  contract  whereby  for  a  consideration  moving  from  a  tkird 
person,  a  clerk  agrees  to  induce  his  employer  to  accept  a  lower 
price  for  property  about  to  be  sold  than  was  first  asked,  can 
not  be  enforced,  in  the  absence  of  a  showing  that  the  em- 
ployer knew  that  his  clerk  was  serving  the  interests  of  the 
purchaser,  such  a  contract  being  against  good  morals.  Summers 
v.  Gary,  74  N.  Y.  S.  980,  69  App.  Div.  428. 

Where  the  clerk  vof  a  broker  employed  to  make  a  sale  of  land, 
who  has  access  to  the  correspondence  between  his  principal  and 
the  vendor,  purchases  the  land  himself,  though  the  price  paid 
be  fair,  and  there  is  no  actual  fraud,  he  will  be  compelled  at 
the  suit  of  the  vendor  to  reconvey  such  portion  of  the  land  as 
remains  in  his  hands,  and  to  account  for  the  proceeds  of  what 
he  has  sold.  Gardner  v.  Ogden,  22  N.  Y.  327. 


PEINCIPAL  AND  AGENT.  273 

Sec.  302.    Conduct  of  broker. 

In  an  action  to  recover  commissions  for  finding  a  purchaser 
it  appeared  that  the  contract  provided  that  the  terms  of  pay- 
ment should  be  $10,000  within  five  days,  $5,000  additional  on 
promises,  etc.,  that  at  eight  o'clock  in  the  morning  of  the  last 
day  for  making  a  sale,  as  provided  by  the  contract,  plaintiffs 
and  one  B.  met  defendants,  and  B.  offered  himself  as  a  pur- 
chaser and  tendered  a  check  for  $10,000  as  the  first  payment; 
that  the  check  was  declined  by  defendant  as  not  equivalent 
to  money,  whereupon  they  were  informed  that  the  money  would 
be  produced  on  the  opening  of  the  bank;  that  defendants  said 
they  would  allow  until  10  o'clock,  and  plaintiffs  and  B.  endeav- 
ored to  tender  payment  to  defendant,  but  were  eluded  all  day 
by  the  latter,  and  at  10  o'clock  defendant  sold  the  land  to 
another  person;  B.  had  made  no  written  contract  for  the  pur- 
chase of  the  land.  Held,  that  defendants  were  liable.  Oullahan 
v.  Baldwin,  100  Cal.  648,  35  P.  310 ;  Beamer  v.  Stuber,  145  N.  W. 
936,  164  Iowa,  309. 

Sec.  302a.    Conduct  of  owner. 

Act  of  Coal  Co.  in  quoting  price  to  another  whereby  a  sale 
was  made  direct,  instead  of  through  brokers  to  whom  the  exclu- 
sive right  to  sell  was  given;  held,  a  breach  of  the  contract,  and 
not  a  mere  revocation  thereof.  ElTchorn  Consol.  Coal  Co.  v. 
Eaton,  Rhodes  &  Co.,  173  S.  W.  798,  163  Ky.  306. 

Though  he  had  given  agency  to  sell  to  broker,  owner  had  the 
right  to  dispose  of  property  to  a  purchaser  of  his  own  finding 
without  liability  for  commissions.  Whittle  v.  Klipper,  165  N. 
W.  425,  —  Iowa  Sup.  — . 

Where,  after  discontinuing  dealing  with  the  customer  procured 
by  broker,  the  owner  knowingly  deals  with  such  customer,  or 
with  a  third  party  representing  such  customer,  the  element  of 
good  faith  in  the  transaction  is  not  material  as  respects  the  ques- 
tion of  the  liability  of  the  owner  to  plaintiff  for  commissions,  al- 
though the  sale  was  at  a  much  lower  price  than  that  offered  by 
the  customer  through  plaintiffs  as  brokers.  Stone  v.  Kreis,  202 
111.  App.  43. 


CHAPTER  III. 

SECTION'.  SECTION. 

303.  Debt  of  another.  or  who  exceeds  same,  binds 
303a.  When   county   not   chargeable                     himself. 

with  a  debt.  307c.  Broker    not    entitled    to   com- 

304.  Discretion.  missions     when     lots     were 

305.  Double  liability.  sold  out  of  order. 

306.  Double  capacity.  308.     Exoneration. 

307.  Contract  in  excess  of  author-  309.     Expenses. 

ity  vested  in  agent.  310.     Employment  of  engineer. 

307a.  Contract    of    broker    varying  311.     Fiduciary    relations. 

from    instruction    will    not  312.     Failure    of    broker    to    report 

be  enforced.  offer. 

307b.  An   agent   who  enters   into   a  313.     False  representations. 

contract    without    authority 


Sec.  303.    Debt  of  another. 

Plaintiff,  as  broker,  sold  property  of  S.  to  C.,  and  defendant 
was  employed  to  draw  a  contract  of  sale,  but  on  finding  that 
S.  had  failed,  defendant  postponed  drawing  the  contract,  and 
later,  though  without  title,  he  contracted  with  C.  to  sell  him  the 
property,  and  received  from  C.  part  of  the  price  which  he 
handed  to  S.,  whereupon  title  was  transferred  to  him,  and  he 
made  a  conveyance  to  C. ;  defendant  at  no  time  had  any  per- 
sonal interest  in  the  property,  and  acted  solely  as  the  agent  of 
C.  for  the  purpose  of  transfer,  and  did  not  employ  plaintiffs, 
nor  agree  to  pay  them  a  commission ;  but  before  the  title  vested 
in  defendant  he  told  one  of  the  plaintiffs  that  ' '  the  matter 
would  go  through,"  that  he  was  the  owner  of  the  property,  and 
would  make  the  contract  himself,  and  if  plaintiffs  were  anxious 
he  would  then  pay  half  of  the  commissions  in  lieu  of  the  whole 
when  the  contract  was  closed.  Held,  that  the  promise  to  pay 
plaintiff  was  either  a  parol  promise  to  pay  another's  debt,  or 
an  original  promise,  without  consideration,  and  therefore  void. 
timythe  v.  Hack,  19  N.  Y.  S.  347,  64  Hun,  639. 

274 


PBINCIPAL  AND  AGENT.  275 

Sec.  303a.    When  county  not  chargeable  with  a  debt. 

A  claim  for  commissions  under  a  contract  by  which  a  county 
lists  lands  with  a  broker  for  sale  for  a  commission;  held,  not  a 
debt  within  the  Con.,  Art.  2,  Sec.  7,  forbidding  the  creation  of 
a  debt  unless  provision  is  made  at  the  time  for  its  payment. 
Fvard  Co.  v.  Sandifer,  151  S.  W.  523,  105  Tex.  420,  aff.  judg. 
134  S.  W.  823,  63  Tex.  Civ.  App.  656. 

Sec.  304.    Discretion. 

A  power  to  sell  "the  one-half"  of  a  lot  of  land,  without 
specifying  which,  or  whether  an  undivided  one-half,  empowers 
the  attorney  to  sell  one-half  in  severalty,  and  to  exercise  his 
own  discretion  as  to  which  half.  Alemany  v.  Daly,  36  Cal.  90. 
Where  the  plaintiff  alleged  an  agreement  whereby  he  was  to 
sell  certain  land  for  enough  cash  to  confirm  the  sale,  meaning 
thereby  enough  to  make  the  land  good  for  the  deferred  pay- 
ment, and  the  balance  to  remain  on  time,  it  is  not  error  to  over- 
rule the  defendant's  objection  that  it  is  not  a  matter  of  law 
how  much  cash  confirms  a  sale,  for  such  a  power  carries  with 
it  some  discretion.  Taylor  v.  Cox  (Tex.  Sup.  1887),  7  S.  W. 
69;  Smith  v.  Keller,  151  111.  518.  38  N.  E.  250;  Bourke  v.  Van 
Keuren,  20  Colo.  95,  36  P.  882. 

Sec.  305.    Double  liability. 

Where  a  purchaser  is  produced  and  a  sale  consummated  by 
one  of  two  brokers  who  have  the  property  for  sale,  and  a  com- 
mission paid  him  by  the  owner,  the  fact  that  the  other  broker, 
has,  by  advertising,  found  a  customer,  and  by  interviews  induced 
him  to  make  the  purchase,  will  not  make  the  owner  liable  to 
him  also.  Daniels  v.  Columbia  Heights  Ld.  Co.,  9  App.  Gas. 
(D.  C.)  483;  Winqns  v.  Jacques,  10  Daly  (N.  Y.)  487. 

An  instruction  that  an  employer  of  two  or  more  real  estate 
brokers  may  make  a  sale  to  a  buyer  produced  by  either,  and  is 
not  bound  to  decide  which  is  the  primary  cause  of  the  pur- 
chase, is  properly  refused  when  the  evidence  shows  that  the 
employer  of  two  brokers,  sued  by  one  of  them,  had  full  notice 
that  he  was  the  procuring  cause  of  the  sale.  Eggleston  v. 
Austin,  27  Kan.  245.  The  court  properly  charged  that,  as  there 


276  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

are  different  kinds  of  sales  of  land,  and  such  contract  does 
not  specify  the  kind,  it  is  for  the  jury  to  determine  from  the 
evidence  and  the  letters  forming  the  contract,  and  the  attend- 
ing circumstances,  as  to  whether  it  included  only  the  auction 
sales,  or  both  auction  and  private  sales,  for  which  plaintiff  was 
to  receive  a  commission.  Coolican  v.  Mil.  &  8.  St.  M.  Im.  Co. 
79  Wis.  471,  48  N.  W.  717. 

Defendant,  living  in  New  York,  placed  a  farm  in  the  hands 
of  plaintiff  and  S.,  two  different  real  estate  agents  in  Winnipeg 
for  sale.  Plaintiff  found  a  purchaser  at  $12  per  acre  in  cash, 
and  informed  defendant  by  letter.  Defendant  replied,  accept- 
ing the  offer,  and  asking  plaintiff  to  call  on  S.  and  arrange 
regarding  commissions,  so  as  to  avoid  having  to  pay  more  than 
one  commission.  Plaintiff  did  not  communicate  with  S.,  but 
introduced  his  purchaser  to  defendant's  solicitor  in  Winnipeg. 
This  purchaser  paid  the  solicitor  $500  on  account,  and  was 
ready  and  willing  to  pay  the  balance,  on  receipt  of  the  transfer. 
Meantime  S.  also  made  a  sale  of  the  farm  at  the  same  price. 
This  latter  sale  was  carried  through  by  defendant,  who  paid 
S.  the  usual  commission.  Held,  that  the  plaintiff  was  entitled 
to  his  commission,  as  he  had  done  all  that  was  necessary  to 
earn  it.  Bell  v.  Rokeby,  15  Manitoba,  327. 

Broker  employed  to  procure  a  customer  with  whom  the  -  prin- 
cipal would  enter  into  an  option  contract  on  terms  agreed  on  be- 
tween the  principals  need  not  consummate  the  deal,  and  where 
the  principal  employs  another  broker  therefor,  he  is  liable  for  a 
double  commission.  Leadville  Mining  Co.  v.  Hempliill,  149  P. 
384,  17  Ariz.  146. 

Where  an  owner  placed  his  property  in  the  hands  of  several 
agents  for  sale,  and  agreed  to  pay  the  commission  to  the  first 
making  a  sale,  the  owner  cannot  be  required  to  pay  a  commission 
to  two  agents,  though  one  agent  may  possibly  obtain  benefits  of 
work  of  another.  House  v.  Earley,  147  S.  W.  303,  —  Tex.  Civ. 
App.  — . 

Broker  entitled  to  a  commission  from  one  principal,  although 
known  to  have  been  the  agent  of  the  other  party  to  the  transac- 
tion. Gudgel  v.  Cook,  142  S.  W.  1014,  146  Ky.  439. 

The  fact  that  defendant  intimates  a  possibility  of  liability  to 
pay  commissions  to  two  brokers  for  the  sale  of  the  same  prop- 


PRINCIPAL  AND  AGENT.  277 

erty  is  immaterial,  as  such  liability  can  not  be  predicated  on  her 
ignorance  of  the  law.  Myers  v.  Batcheller,  163  N.  Y.  Sup.  688, 
177  App.  Div.  47. 

Where  contracts  were  made  with  two  realty  brokers,  it  was  in- 
cumbent on  them  to  show  that  both  were  to  receive  commissions 
for  procuring  purchaser  and  effecting  a  sale  of  the  same  prop- 
erty. Id. 

Where  defendant  agreed  to  pay  plaintiff  a  commission  for  ex- 
changing property,  and  another  party  agreed  to  pay  plaintiff  a 
like  commission,  and  the  minds  of  the  principals  met,  but  de- 
fendant broke  the  contract,  the  broker  could  recover  from  him 
only  the  single  commission  due  from  defendant.  Windman  v. 
Bulkostein,  168  N.  Y.  Supp.  57. 

Where,  in  a  broker's  office  where  defendant  listed  a  house  for 
sale,  a  third  party  said,  in  his  presence,  he  could  furnish  a  buyer 
if  the  broker  would  split  commissions,  and  the  house  was  sold, 
such  third  party  was  not  a  partner  of  the  broker,  and  settlement 
with  him  was  not  a  settlement  with  the  broker.  Home  Securities 
Co.  v.  Todd,  165  N.  W.  204,  —  Iowa  Sup.  — . 

A  party  to  an  exchange,  recognizing  by  offer  that  broker  is 
acting  for  the  other  party,  is  liable  for  commissions  as  agreed, 
though  the  broker  receives  a  commission  from  the  other  party. 
John  Eeis  &  Co.  v.  Post,  170  N".  Y.  Supp.  610,  183  App.  Div.  696. 

If  each  of  two  brokers  performed  his  independent  contract  to 
procure  a  purchaser  ready,  able  and  willing  to  buy  the  property 
at  the  specified  price,  each  will  be  entitled  to  compensation. 
Alton  &  Peters  v.  Merrit,  177  N.  W.  770,  —  Minn.  Sup.  — . 

In  an  action  by  real  estate  brokers  to  recover  a  commission 
promised  by  a  corporate  stockholder  if  they  succeeded  in  selling 
corporate  lands,  where  the  stockholder's  written  offer  referred  to 
the  formation  of  a  syndicate  by  the  brokers,  and  it  was  uncon- 
tradicted  that  he  was  informed  the  brokers  would  not  act  unless 
they  also  received  a  commission  from  the  syndicate,  or  corpora- 
tion orgainzed,  recovery  can  not  be  denied  on  the  ground  that  the 
brokers  received  compensation  from  the  corporation  organized. 
Hortman  v.  Selling,  189  P.  887,  —  Or.  Sup.  — . 

Where  an  agent  to  find  a  purchaser  for  realty  reports  an  offer 
on  the  prescribed  terms,  and  owner  says  that  he  is  negotiating  a 
sale  to  another,  but  that  if  it  falls  through  the  agent  can  go 


278  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

ahead  with  his  deal,  and  within  a  few  days,  and  without  the 
agent's  knowledge,  sells  to  some  prospect  brought  to  him  by  an- 
other agent,  to  whom  he  pays  a  commission,  the  first  agent,  if 
otherwise  the  proximate,  efficient  cause  of  the  sale,  may  recover 
his  commission,  though  he  did  not  introduce  his  customer  to  the 
owner.  Osburn  v.  Moore,  193  P.  892,  —  Kan.  Sup.  — . 

Sec.  306.    Double  capacity. 

The  law  will  not  permit  a  man  to  act  in  the  double  capacity 
of  principal  and  agent.  Dwight  v.  Blackmar,  2  Mich.  330. 
Where  the  owner  of  land  agreed  to  sell  it  to  real  estate  brokers, 
who  at  first  stated  that  they  were  acting  for  themselves,  but 
afterwards,  before  the  contract  was  made,  stated  that  they  were 
acting  as  brokers,  and  the  contract  was  made  to  a  third  person, 
proof  of  their  employment  before  the  making  of  the  contract 
was  not  essential  to  their  right  to  commissions.  Shapiro  v. 
Shapiro,  103  N.  Y.  S.  305,  117  App.  Div.  817. 

That  a  broker  contracted  to  secure  a  loan  and  perform  other 
services  for  an  agreed  commission,  advances  money  on  the  loan 
secured  by  a  mortgage  taken  in  the  name  of  another  as  mortga- 
gee, intending  to  sell  the  mortgage,  did  not  constitute  him  a 
dual  agent  so  as  to  forfeit  his  commission.  In  re  Williams,  252 
F.  924. 

Sec.  307.    Contract  in  excess  of  authority  vested  in  agent. 

Where  defendant  authorized  his  agent  to  sell  his  farm  for 
a  certain  sum,  the  first  payment  to  be  made  on  February  1st, 
a  contract  requiring  the  first  payment  to  be  made  on  March  1st, 
and  obligating  defendant  to  furnish  an  abstract  of  title,  to 
pay  taxes,  payable  after  the  purchaser  was  to  take  possession, 
and  to  credit  on  the  price  any  insurance  he  might  receive  in 
consequence  of  the  building  on  the  land  burning,  was  in  excess 
of  the  agent's  authority,  and  not  binding  on  defendant.  Strong 
v.  Eoss,  33  Ind.  App.  586,  71  N.  E.  819 ;  Staten  v.  Hammer,  121 
Iowa  499 ;  96  N.  W.  964 ;  Fleming  v.  Burke,  122  Iowa,  433,  98 
N.  W.  288;  Planer  v.  Equitable  L.  A.  Soc.  (N.  J.  Ch.  '97),  37 
A.  668;  John  Gund  Brewing  Co.  v.  Tourtelott  (Minn.  Sup.  '09), 
121  N.  W.  417;  Larson  v.  Newman  (N.  D.  Sup.  '09),  121  N.  W. 


PRINCIPAL  AND  AGENT.  279 

202;  Turner  v.  "Baker,  225  Pa.  259,  74  A.  172;  Deming  Inv.  Go. 
v.  Coolidge  (Colo.  Sup.  >09),  104  P.  392;  Rand  v.  Conkrite,  64 
HI.  App.  208 ;  Rattler  v.  Oliver,  138  HI.  App.  200,  affirmed  233  111. 
536,  84  N.  E.  652;  Wynkoop  v.  Shoemaker,  37  App.  D.  C.  258; 
Van  Winkler  v.  Harris,  72  S.  E.  424,  137  Ga.  43;  Merritt  v. 
Hummer,  133  P.  816,  21  Colo.  App.  568;  Nelson  v.  W,  U.  Tel 
Co.,  143  1ST.  W.  833,  162  Iowa,  50 ;  Harrington  v.  Dodge,  103  N.  E. 
919,  216  Mass.  461.  See  Sees.  310,  324,  330,  337,  337b,  339,  340, 
342,  343,  354,  355,  363,  364,  372,  373,  381,  386,  427,  547,  548, 
549,  597,  1041. 

Sec.  307a.    Contract  of  broker  varying  from  instructions  will 
not  be  enforced. 

Where  a  broker  to  sell  has  power  to  sign  a  contract,  if  the 
contract  signed  by  him  varies  from  his  instructions,  the  principal 
will  not  be  bound  by  it,  and  it  will  not  be  specifically  enforced 
against  the  latter.  Morris  v.  Euddy,  20  N.  J.  Eq.  236;  Spengler 
v.  Sonnenberg,  88  0.  S.  192.  See  also  reference  under  Sec.  307. 

Sec.  307b.    An  agent  who  makes  a  contract  either  without 

authority  or  in  excess  of  authority  given,  binds  himself. 

An  agent  who  makes  a  contract  either  without  authority  or 

or  in  excess  of  authority,  binds  himself.     Moore  v.  Wilson,  26 

Foster  (N.  H.)   332;  Meech  v.  Smith t  1  Wend.   (N.  Y.)   315; 

Roberts  v.  Button,  14  Yer.  195;  Royce  v.  Allen,  28  Ver.  234; 

Bank  of  Hamburg  v.  Way,  4  Strobh.    (S.  C.)    87;  Layny  v. 

Stewart,  1  W.  &  S.  (Pa.)  222;  Feeter  v.  Heath,  11  Wend.  (N. 

Y.)  478;  Heath  v.  Hoffhines,  152  S.  W.  176,  —  Tex.  Civ.  App.  — . 

Sec.  307c.    Broker  not  entitled  to  commissions  where  lots  were 
sold  out  of  the  order  provided  for. 

Persons  employed  to  sell  certain  lots  of  land  at  prices  named 
in  a  written  contract  of  employment,  the  lots  to  be  sold  onl> 
in  the  order  enumerated  in  the  contract,  were  not  entitled  to 
commissions  for  procuring  a  purchaser  of  lots  not  in  their 
order,  though  the  owner's  refusal  was  not  based  on  that  ground. 
Stearns  v.  Jennings,  128  Wis.  379,  107  N.  W.  327.  See  also 
Sees.  340,  840. 


280  AMERICAN  LAW  REAL   ESTATE  AGENCY. 

Sec.  308.    Exoneration. 

A  broker,  through  negligence,  loaned  on  second  mortgage 
some  money  which,  for  compensation,  he  had  undertaken  to 
loan  on  first  mortgage  security,  but  before  the  loan  became  due 
the  lender,  with  other  creditors  of  the  borrower,  signed  a  com- 
position releasing  him  from  personal  liability  beyond  the  lien 
of  the  mortgage.  Held,  that  this  released  the  broker  from  his 
contingent  liability  to  the  lender.  Nicolai  v.  Lyon,  8  Ore.  56. 

Sec.  309.    Expenses. 

A  real  estate  agent  who  is  merely  promised  a  commission  for 
making  a  sale,  is  not  also  entitled  to  recover  for  expenses  in- 
curred in  procuring  a  purchaser.  Reynolds-McGuinness  Co.  v. 
Green,  78  Vt.  28,  61  A.  556.  See  also  Sees.  561,  543. 

Where  a  real  estate  broker  fraudulently  induced  his  prin- 
cipal to  trade  property  on  a  valuation  of  $4,400,  and  sold  it  for 
$5,750,  in  an  action  by  the  principal  against  the  broker  for  the 
difference,  the  latter  could  not  recoup  the  amount  of  expenses 
incurred  in  making  the  sale,  nor  a  portion  of  the  profit  paid 
to  one  who  was  associated  with  him  in  the  fraud.  Van  Raulte 
v.  Epstein,  202  Mo.  173,  99  S.  W.  1077. 

A  real  estate  agent,  having  property  of  others  for  sale,  who 
requests  a  prospective  buyer  to  go  with  him  to  see  the  prop- 
erty, can  not  charge  the  latter  for  his  services  and  expenses  in 
making  such  trip.  Hale  v.  Knapp,  134  Mich.  622,  96  N.  W. 
1060. 

Where  plaintiff  was  to  have  the  proceeds  of  sale  after  pay- 
ment of  the  debts  and  the  agreed  broker's  commissions,  charges 
for  traveling  expenses  and  a  sub-agent's  fees  in  making  the  sale 
would  be  included  in  the  commission.  Lyttle  v.  Goldberg,  131 
Wis.  613,  111  N.  W.  718. 

A  broker  who  has  not  written  authority  from  the  owner  of 
realty  to  find  a  purchaser,  as  required  by  laws  of  1915  (Comp. 
Laws,  Sec.  6012),  can  not  recover  expenses  incurred  in  connection 
with  the  sale,  in  the  absence  of  a  contract  therefor.  Weatherhead 
v.  Cooney,  180  P.  760,  —  Idaho  Sup.  — . 

Sec.  310.    Employment  of  engineer. 

It  is  not  within  the  scope  of  the  authority  of  persons  em- 
ployed to  collect  the  rents  of  a  building  to  employ  an  engineer 


PRINCIPAL  AND  AGENT.  281 

to  take  charge  of  the  engine  therein;  a  general  agent  having 
charge  of  this  matter,  and  of  the  building  generally,  can  not 
delegate  his  authority  to  others.  Crosier  v.  Reims,  4  HI.  App. 
564.  See  references  under  Sec.  307. 

Sec.  311.    Fiduciary  relations. 

One  who  undertakes  to  collect  rents  and  exercise  control  over 
property  occupies  a  fiduciary  relation  which  forbids  placing 
himself  in  antagonism  to  his  principal  with  respect  to  such 
property.  Grumley  v.  Webb,  44  Mo.  444. 

In  ejectment  defendant  claimed  an  equitable  title;  plaintiff's 
testator  A.,  formerly  owned  the  land  and  placed  it  with  F.  to 
sell,  who  entrusted  it,  with  A.'s  consent,  to  defendant;  in  a 
short  time  defendant  wrote  to  F.  that  he  had  an  offer,  and 
enclosed  a  deed  for  A.  to  sign,  with  the  name  of  the  grantee 
omitted;  on  return  of  the  deed  signed  and  acknowledged,  de- 
fendant inserted  his  own  name  as  grantee  and  forwarded  a 
check  to  F.  for  the  price,  who  cashed  the  check  and  credited 
A.  's  account ;  the  deed  was  void  because  of  the  failure  to  insert 
the  grantee's  name  before  delivery.  Held,  that  on  account  of 
the  defendant's  fiduciary  relations  to  A.  he  took  no  equitable 
title.  Burke  v.  Bours,  92  Cal.  108,  67  Cal.  447,  28  P.  57,  8 
P.  49. 

The  relations  between  an  agent  for  the  sale  of  land  and  his 
principal  are  of  a  fiduciary  nature,  and  the  agent's  acts  in  the 
course  of  his  employment  are  governed  by  the  same  rules  as 
those  of  a  trustee.  Butler  v.  Agnew  (Cal.  App.  '08),  99  P.  395. 

With  respect  to  services  to  be  rendered  by  a  real  estate  agent 
employed  to  negotiate  a  sale  of  land,  a  relation  of  confidence  ex- 
ists between  the  agent  and  the  owner.  Ware  v.  Ware  &  Harper, 
92  S.  E.  961,  —  Ga.  App.  — . 

The  owner  of  certain  mineral  land  authorized  plaintiffs  to 
sell  the  same  for  $2,000,  they  to  receive  for  their  services  all 
over  that  amount  they  obtained.  F.  contracted  with  the  plain- 
tiffs to  make  the  sale  and  receive  half  of  the  profits.  F.  there- 
after formed  a  corporation  to  buy  the  land,  representing  that 
the  price  to  be  paid  the  owner  was  $5,000,  and  that  he  was  to 
receive  ten  per  cent,  thereof  for  making  a  sale.  A  sale  was 


282  AMERICAN  LAW  REAL   ESTATE  AGENCY. 

made,  $3,000  being  paid  in  cash,  of  which  plaintiffs  recovered 
$500,  and  a  note  for  $2,000  being  given  by  the  corporation  to  the 
owner  of  the  land  for  the  balance.  Held,  that  F.  sustained  a 
fiduciary  relation  to  the  corporation,  and  it  was  entitled  to  the 
land  for  the  price  actually  paid  to  the  owner,  and  hence  plaintiffs 
were  not  entitled  to  recover  any  part  of  the  amount  agreed. to  be 
paid  by  the  note.  Tagarden  Bros.  v.  Big  Star  Zink  Co.,  71  Ark. 
277,  72  S.  W.  989. 

A  contract  to  pay  a  broker  a  commission ;  held,  not  to  be  voided 
by  his  fiduciary  relations  to  his  client,  where  inducing  represen- 
tations were  not  false  or  misleading.  Lundeen  v.  Ottis,  128  P. 
335,  164  Cal.  183. 

A  broker  occupies  a  quasi  fiduciary  relation  to  his  employer, 
and  must  act  in  good  faith  and  disclose  material  matters.  Cop- 
page  v.  Howard,  96  A.  642,  127  Md.  510. 

Sec.  312.    Failure  of  broker  to  report  offer. 

Where  a  broker  who  received  a  proposition  to  sell  defendant's 
land  did  not  accept  it  until  after  the  expiration  of  the  time 
designated  in  the  offer  for  its  acceptance,  he  is  not  entitled  to 
commissions  on  the  making  of  the  sale.  Short  v.  Willing,  1 
Weekly  Notes  of  Gas.  (Pa.),  460;  Drew  v.  Gone,  91  S.  E.  1068, 
10  Ga.  App.  704.  See  also  Sees.  235,  431,  471. 

Sec.  313.    False  representations. 

"Where  defendant  authorized  plaintiff  to  sell  real  estate, 
agreeing  to  pay  a  commission,  and  in  a  printed  form  above  the 
authorization  set  out  particulars  of  the  property,  the  selling 
price  as  $52,000  and  the  annual  rental  as  $5,325,  and  plaintiff 
procured  a  purchaser  ready,  able  and  willing  to  buy  on  de- 
fendant's terms,  the  price  being  reduced  to  $49,500,  and  the 
customer  was  accepted,  and  the  sale  fell  through  only  because 
defendant  had  misrepresented  the  amount  of  annual  rental, 
plaintiff  was  entitled  to  commissions.  Goodman  v.  Hess,  107 
N.  Y.  S.  112,  56  Misc.  482.  Contra,  Crockett  v.  Grayson,  98 
Va.  354,  36  S.  E.  447.  Compare  Sec.  183. 

A  real  estate  broker  employed  to  procure  a  purchase  of  prem- 
ises for  $8,000  in  cash  and  assumption  of  two  mortgages,  one 


PRINCIPAL  AND  AGENT.  283 

having  two  years  to  run  and  the  other  payable  in  install- 
ments extending  over  a  period  of  seven  years,  procured  a 
purchaser  who  agreed  with  the  owner  for  the  purchase  of 
the  premises  and  to  pay  $7,900  in  cash  and  to  assume  the 
mortgages  as  described;  the  mortgages  matured  a  year  earlier 
than  had  been  represented  by  the  owner;  the  purchaser  in- 
sisted on  a  formal  contract  embodying  the  terms  accordingly, 
and  the  owner  refused  to  execute  such  a  contract;  the  pur- 
chaser was  able  to  complete  the  purchase.  Held,  that  the 
broker  was  entitled  to  his  commissions.  Frank  v.  Connor,  107 
N.  Y.  S.  132.  See  also  Sec.  454. 

"Where  a  broker,  knowing  of  the  existence  of  an  incumbranee 
and  contrary  to  his  instructions  executes  an  agreement  for 
a  sale  free  from  incumbrances,  and  deceives  his  principal  as 
to  its  contents,  he  can  not  recover  commissions.  Gulp  v.  Pow- 
ell, 68  Mo.  App.  238.  See  also  Sec.  183. 

If  an  agent  effects  a  sale  of  the  land  of  his  principal  by 
false  representations,  or  other  fraud,  without  the  authority 
or  knowledge  of  the  principal,  the  latter  is  chargeable  with 
such  fraud  in  the  same  manner  as  if  he  had  known  or  au- 
thorized it.  Law  v.  Grant,  37  Wis.  548;  F arris  v.  Gilder  (T. 
C.  A.  J09),  115  S.  W.  645;  Stelting  v.  Bank  of  Sparta,  117  N. 
W.  798,  136  Wis.  369;  Adams  v.  Barter,  139  S.  W.  489,  157  Mo. 
App.  370;  Aranovitz  v.  Woolard,  152  N.  Y.  Sup.  11,  166  App. 
Div.  365.  See  also  Sees.  99,  314,  315,  316. 

Where  a  contract  for  the  purchase  of  land  accorded  to  the  pur- 
chaser the  right  to  "back  out"  on  paying  a  forfeiture,  the  vendor 
can  not  recover  damages  from  the  agents  on  account  of  their 
having,  by  false  representations,  induced  the  purchaser  to  forfeit 
the  contract.  Hetzler  v.  Morrell,  82  Iowa,  562,  48  N.  W.  938. 

Broker  not  entitled  to  commissions  for  misleading  purchaser 
so  that  he  defaulted  in  carrying  out  his  contract.  Carrington  v. 
Graves,  89  A.  237,  121  Md.  567. 

Where  a  real  estate  broker  fraudulently  misrepresents  the 
financial  ability  of  the  purchaser,  and  the  principal  discovers 
that  the  purchaser  is  unable  to  carry  out  the  contract,  rescinds, 
the  broker  is  not  entitled  to  a  commission.  Meyer  v.  Keating 
Loan  &  Mtge.  Co.,  148  N.  W.  452,  126  Minn.  409. 


284  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Seller  of  property  through  real  estate  agent  could  not  be  bound 
by  statements  made  by  agency  as  to  what  disposition  could  be 
made  of  property  after  title  passed  out  of  him  through  agency. 
Columbia  Sav.  BTc  &  Trust  Co.  v.  True,  93  S.  E.  389,  —  S.  C. 
Sup.  — . 

Where  land  was  not  sold  to  procured  purchaser  by  brokers' 
principal,  but  was  sold  to  a  third  party,  and  by  third  party  to 
procured  purchaser,  broker  can  not  recover  commissions  without 
showing  that  broker's  principal,  after  having  sold  land  to  pro- 
posed purchaser,  fraudulently  conveyed  it  to  third  party  as  a 
mere  blind  to  deprive  brokers  of  their  commissions.  Lorton  v. 
True,  216  S.  W.  54,  —  Mo.  App.  — .  A  broker,  unless  given 
more  than  his  ordinary  powers,  viz.,  to  find  a  purchaser  willing 
to  purchase  his  principal's  property  on  terms  and  conditions  fixed 
by  the  principal,  can  not  bind  his  principal  by  statements  to  pur- 
chasers of  meaning  of  words  in  a  contract,  especially  where  there 
is  a  limited  partnership  between  the  broker  and  the  purchasers  in 
the,  purchase,  so  that  the  representation  was  by  one  partner  to 
another.  Qile  v.  Tantahawa,  187  P.  323,  —  Wash.  Sup.  — . 


CHAPTER  IV. 
FRAUD. 

SECTION.  SECTION. 

314.  Fraud   of  broker  against  his    318.     Fraud      of      third      persons 

principal.  against  broker. 

315.  Fraud  of  broker  against  third    319.     Fraud  of  principals  inter  se. 

persons.  320.     Debatable  acts  of  broker  not 

316.  Fraud  of  sub-agent.  constituting  fraud. 

317.  Fraud    of    principal    against   321.     Points  of  practice  in  actions 

broker.  for  fraud. 

Sec.  314.    Fraud  of  broker  against  his  principal. 

If  a  broker  is  guilty  of  fraud  in  executing  his  agency  his 
right  to  commissions  is  forfeited.  Jeffries  v.  Bobbins,  66  Kan. 
427,  71  P.  852;  Kurinsky  v.  Lynch  (Mass.  Sup.  '09),  87  N.  E. 
70;  Krhut  v.  Phares,  80  Kan.  515,  103  P.  117;  Whaples  v. 
Fahy,  87  N.  Y.  App.  Div.  518,  84  N.  Y.  S.  793;  De  Armet  v. 
Milner,  20  Pa.  Super.  Ct.  369;  Hall  v.  Gambrill,  92  Fed.  32, 
34  C.  C.  A.  190;  Schleifanbaum  v.  Rundbaken,  81  Conn.  623, 
71  A.  899;  Moore  v.  Kelley,  162  S.  W.  1034,  —  Tex  Civ.  App. 
— ;  Martineau  v.  Hanson,  155  P.  432,  47  Utah,  549;  Dean  v. 
Roberts,  62  S.  44,  182  Ala.  221 ;  Swaney  v.  Bradford,  165  N.  W. 
362,  —  Iowa  Sup.  — ;  Sutherland  v.  Guthrie,  103  S.  E.  298,  — 
W.  Va.  Sup.  — ;  Hallman  v.  Lipscomb,  103  S.  E.  513,  —  S.  C. 
Sup.  — . 

In  one  case  it  was  held  that  a  broker  employed  to  find  a 
buyer  is  guilty  of  fraud  when  he  seeks  to  induce  the  prin- 
cipal to  reduce  the  price.  Hobart  v.  Shelburne,  66  Minn.  171, 
68  N.  W.  841.  Contra,  Gorman  v.  Hayes,  6  Okla.  360,  50  P. 
92.  See  also  Sees.  290,  291,  1046a.  A  broker  may  be  de- 
prived of  his  right  to  commissions  by  the  fraudulent  conduct 
or  misrepresentations  of  third  persons  in  privity  with  him. 
Thwing  v.  Clifford,  136  Mass.  482.  If  a  broker  conceals  the 
purchaser's  name  and  puts  forward  a  fictitious  purchaser,  it 
constitutes  a  fraud  in  law,  and  deprives  him  of  his  right  to 

285 


286  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

commissions  for  procuring  a  buyer.    Pratt  v.  Patterson,  12  Phila. 
(Pa.),  460,  112  Pa.  St.  475. 

A  broker  who  acts  secretly  for  both  parties  to  an  exchange, 
purchase,  sale  or  lease  of  property  is  guilty  of  fraud  which 
deprives  him  of  the  right  to  recover  commissions  from  either 
party.  Tigarder  v.  Big  Stone  Zinc  Co.,  71  Ark.  277,  72  S.  W. 
789;  Deutsch  v.  Baxter,  9  Colo.  App.  58,  47  P.  405;  Hanesley 
v.  Monroe,  103  Ga.  279,  29  S.  E.  928 ;  Van  Vlissingen  v.  Blum, 
92  111.  App.  145;  Hampton  v.  Lackens,  72  111.  App.  442;  Boyd 
v.  Dillingham,  33  111.  App.  266;  Simonds  v.  Hoover,  35  Ind. 
412;  Blake  v.  Stump,  73  Md.  160,  20  A.  788,  10  L.  E.  A.  103; 
Rice  v.  Wood,  113  Mass.  133;  Walker  v.  Osgood,  98  Mass. 
348;  Farnsworth  v.  Hemmer,  1  Allen  (Mass.),  494;  Rosenthal 
v.  Drake,  82  Mo.  App.  358;  Chapman  v.  Currie,  51  Mo.  App. 
40;  Strowbridge  v.  Swan,  43  Neb.  281,  62  N.  "W.  199;  Camp- 
bell v.  Baxter,  41  Neb.  729,  60  N.  W.  90;  Robinson  v.  Clock, 
55  N.  Y.  S.  976,  38  App.  Div.  67 ;  Southack  v.  Lane,  65  N.  Y. 
S.  629,  32  Misc.  141;  Perkins  v.  Brainerd  Quarry  Co.,  32  N. 
Y.  S.  230,  11  Misc.  328;  Plait  v.  Baldwin,  2  N.  Y.  City  Ct. 
281;  Capener  v.  Hogan,  40  0.  St.  203;  Hann  v.  Bretler,  107 
N.  Y.  S.  78;  Bell  v.  McConnell,  37  0.  St.  396;  Connell  v. 
Smith,  142  Pa.  St.  25,  21  A.  793,  12  L.  R.  A.  395;  Lynch  v. 
Faller,  11  R.  I.  311;  Armstrong  v.  O'Brien,  83  Tex.  635,  19 
S.  W.  268 ;  Shepard  v.  Hill,  6  Wash.  605,  34  P.  159 ;  Meyer  v. 
Hanchett,  39  Wis.  419;  BelJin  v.  Wrin,  104  N.  Y.  S.  360;  Cook 
v.  Schaffrean.  102  K  E.  715,  215  Mass.  444;  Tracey  v.  Blake, 
118  N.  E.  271,  229  Mass.  57.  Mechem  on  Ag.,  Sees.  37,  38. 

Unless  the  principals  knew  of  the  duplicate  agency  and  con- 
sented thereto  or  acquiesced  therein.  Hanesley  v.  Monroe,  103 
Ga.  279,  29  S.  E.  928;  Boyd  v.  Dillingham,  33  111.  App.  266; 
Gann  v.  Zetler,  3  Ga.  App.  589,  60  S.  E.  283;  Rice  v.  Wood, 
113  Mass  133;  Walker  v.  Osgood,  98  Mass.  348;  Farnsworth 
V.  Hemmer,  1  Allen  (Mass.),  494;  Redmund  Bros.  v.  Hooks, 
137  Iowa,  228,  114  N.  W.  885;  Rosenthal  v.  Drake,  82  Mo. 
App.  358;  Chapman  v.  Currie,  51  Mo.  App.  40;  Strowbridge 
v.  Swan,  43  Neb.  781,  62  N.  W.  199;  Dennison  v.  Gault,  132 
Mo.  App.  301,  111  S.  W.  844;  Campbell  v.  Baxter,  41  Neb. 
729,  60  N.  W.  90;  Lansing  v.  Bliss,  33  N.  Y.  S.  310,  86  Hun, 


PRINCIPAL  AND  AGENT.  287 

205;  Bonwell  v.  AuU,  27  N.  Y.  S.  936,  affirmed  29  N.  Y.  S. 
15,  9  Misc.  65 ;  Bonwell  v.  Howes,  1  N.  Y.  S.  435 ;  Bellin  v. 
Wein,  104  N.  Y.  S.  360;  Plait  v.  Baldwin,  2  N.  Y.  City  Ct 
281;  Willner  v.  Scale,  111  N.  Y.  S.  699,  127  A.  D.  180;  Co- 
pener  v.  Hogan,  40  0.  St.  203;  Bell  v.  McConnell,  37  0.  St 
396;  Evans  v.  Rockett,  32  Pa.  Super.  Ct.  365;  Connell  v. 
Smtffc,  142  Pa.  St.  25,  21  A.  793,  12  L.  E.  A.  395;  Sullivan 
v.  Tufts  (Mass.  Sup.  '09),  89  N.  E.  239;  Lynch  v.  Faller,  11 
K.  I.  311;  Meyer  v.  Hanchett,  39  Wis.  419;  Selevar  v.  JsZe 
Harbor  Ld.  Co.,  91  Minn.  451,  98  N.  W.  344;  Lakin  v.  Nordyke, 
66  Iowa,  471 ;  .Red  Cypress  Lumber  Co.  v.  Perry,  118  Ga.  876, 
45  S.  E.  674;  Berry  v.  Schmidt,  57  N.  W.  172;  Zimmerman  v. 
Garvey,  81  Conn.  570,  71  A.  780;  Arthur  v.  Porter  (Tex. 
Civ.  App.  '09),  116  S.  W.  127;  Grasinger  v.  Lwcas  (S.  D. 
Sup.  '09),  123  N.  W.  77;  Lipscomb  v.  Mastin  (Mo.  App.  '10), 
125  S.  W.  1177. 

If  a  broker  has  an  individual  interest  in  the  transaction  he 
is  employed  to  negotiate,  and  fails  to  disclose  the  fact  to  the 
principal,  this  constitutes  a  fraud  which  deprives  him  of  the 
right  to  compensation  for  his  services.  Collins  v.  McClurg, 
1  Colo.  App.  348,  29  P.  299 ;  Jeffries  v.  Bobbins,  66  Kan.  427, 
71  P.  852;  Buck  v.  Hozeboom  (Neb.  Sup.  '02),  90  N.  W. 
635;  Ryan  v.  Kahler  (Tex.  Civ.  App.  '98),  46  S.  W.  71;  DeL'~ 
Archerie  v.  Rutherford  (Wash.  '09),  102  P.  1033;  Forbes  v. 
Davis,  200  111.  App.  378.  If  a  broker  in  negotiating  a  contract 
practices  fraud  on  the  owner,  and  the  other  party  is  privy  thereto, 
or  has  knowledge  thereof,  the  owner  is  not  bound  thereby,  and  it 
was  not  necessary  in  a  suit  to  recover  the  lands  that  the  owner 
should  offer  to  restore  what  he  had  received  before  he  could 
demand  restitution.  Healey  v.  Martin,  68  N.  Y.  S.  413,  33 
Misc.  236. 

Where  the  broker  for  the  purchaser  also  represents  the  vendor, 
the  transaction  is  not  binding,  irrespective  of  actual  fraud,  with- 
out the  intelligent  consent  of  both  parties.  Ferguson  v.  Gooch, 
94  Va.  1,  26  S.  E.  397,  40  L.  R.  A.  234;  Whitney  v.  Bissell,  146 
P..  141,  75  Or.  28,  L.  R.  A.  1915  D,  257. 

Where  defendant  contracted  for  a  sale  of  land  through  a 
real  estate  agent,  and  subsequently  received  a  payment  of  in- 
terest which  the  agent  had  received  from  the  vendee,  but  she 


288  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

had  not  left  the  contract  with  him  nor  authorized  him  to  col- 
lect; subsequently  she  sold  to  the  agent  her  interest  in  the 
contract,  and  he  sold  said  interest  to  the  plaintiff,  who  paid 
the  agent  therefor,  and  at  the  agent's  instance  defendant  made 
a  deed  to  plaintiff,  and  subsequently,  at  the  instance  of  the 
agent,  gave  a  deed  to  the  original  vendee;  such  vendee  had 
made  full  payment  to  the  agent,  but  he  had  not  paid  the 
money  over  to  defendant;  two  witnesses  testified  that  defend- 
ant acknowledged  drawing  the  contract  and  deed  to  the  orig- 
inal vendee,  and  that  the  agent  had  acted  for  her.  Held,  that 
there  was  no  evidence  to  show  that  the  real  estate  agent  in  re- 
ceiving payment  from  the  vendee  after  such  agent  had  bought 
the  contract  from  defendant  received  it  as  her  agent,  so  that 
plaintiff  could  recover  from  defendant  on  the  money  counts 
as  for  money  received  to  plaintiff's  use.  Rhode  v.  Marquis, 
135  Mich.  48,  97  N.  W.  53.  Compare  Frank  v.  Levy,  10  Ohio 
Cir.  Ct.  E.  554. 

The  owner  of  city  lots  employed  two  persons,  associated  to- 
gether as  real  estate  agents,  to  sell  them,  and  fixed  the  price 
at  $14,000;  a  purchaser  was  secured  by  the  agents  at  $16,000, 
to  whom  a  deed  was  executed  direct  by  the  owner,  the  agents 
accounting  only  for  $14,000,  claiming  that  to  be  the  full 
amount  received,  and  being  paid  a  commission  thereon  by  the 
employer;  on  discovering  that  $16,000  had  been  received  from 
the  purchaser,  the  owner  first  demanded  a  return  of  the  check 
given  for  commissions,  which  was  returned,  and  then  sued  the 
agents  for  the  additional  $2,000  and  recovered;  the  judgment 
being  right  on  the  merits,  and  the  issues  all  having  been  found 
in  favor  of  the  plaintiff,  and  well  supported  by  the  evidence, 
it  must  be  affirmed.  Collins  v.  McClurg,  1  Colo.  App.  348,  29 
P.  299;  Babcock  v.  De  Mott,  160  Fed.  882;  Tate  v.  Aitken, 
5  Cal.  App.  505,  90  P.  836;  Borst  v.  Lynch,  133  Iowa,  567, 
110  N.  W.  1031;  Dater  v.  Jackson,  76  Kan.  568,  92  P.  546; 
Fulton  v.  Waiters,  28  Pa.  Super.  Ct.  269,  reversed  216  Pa. 
St.  56 ;  Hall  v.  Kellogg,  94  S.  W.  389,  42  Tex.  Civ.  App.  636  ? 
Lee  v.  Pattillo,  105  Va.  10,  52  S.  E.  696;  Easterly  v.  Mills 
(Wash.  Sup.  '09),  103  P.  475;  Forbes  v.  Thorpe,  95  N.  E.  955, 
200  Mass.  570;  Middlefork  Cattle  Co.  v.  Todd,  144  P.  641,  49 
Mont.  259;  Waterbury  v.  Barry,  130  N.  Y.  Supp.  517,  145  App. 


PRINCIPAL  AND  AGENT.  289 

Div.  773;  28  L.  E.  A.  (N.  S.)  952;  Ratliffe  v.  Cease,  164  P. 
1091,  100  Kan.  445;  McBride  v.  Campredon,  171  P.  140,  L.  R. 
A.  1918  D,  407,  --  N.  M.  Sup.  — ;  Sutherland  v.  Guthrie,  103 
S.  E.  298,  —  W.  Va.  Sup.  — . 

Defendants,  brokers,  being  authorized  by  plaintiffs  to  sell 
land  for  $2,300,  intrusted  the  matter  to  G,  an  employe,  who 
persuaded  one  S  to  take  the  land  for  $2,300,  promising  that 
defendants  would  raise  the  money  for  him;  defendants  failed 
to  raise  the  money,  whereupon  S  begged  G  to  find  some  one 
to  take  the  contract  off  his  hands  and  save  him  the  $100  paid 
to  plaintiff;  defendants  having  then  disposed  of  part  of  the 
land  to  the  amount  of  $600,  H,  an  employe  of  defendants, 
with  knowledge  of  the  facts,  agreed  to  take  over  the  contract, 
S  to  take  another  part  of  the  land  for  $600,  counting  in  his 
$100  paid;  these  two  sales  for  $600  each  amounted  to  half 
of  the  land;  plaintiff  not  knowing  that  H  was  an  employe  of 
defendants  gave  him  a  deed,  and  received  from  him  $2,300, 
less  $200  commissions  paid  defendants;  H  later  sold  the  rest 
of  the  land  for  $2,100.  Held,  that  defendants  and  H  were 
guilty  of  a  legal  fraud  on  plaintiff,  and  must,  as  trustees,  ac- 
count to  him  for  the  profits  realized.  Powers  v.  Black,  159 
Pa.  St.  153,  28  A.  133 ;  Mowbry  v.  Randolph,  1  Cal.  App.  421, 
94  P.  403. 

One  who,  knowing  of  an  opportunity  to  sell  for  $30  an  acre, 
and  then  knowing  the  court  would  not  allow  a  third  of  the 
purchase  money  as  commissions,  gets  an  ostensible  purchaser, 
at  a  smaller  price,  as  a  means  of  passing  title,  is  precluded 
from  obtaining  a  commission  by  his  fraud  on  the  court  of 
which  the  receiver  was  an  officer.  Ryan  v.  Kahler  (Tex.  Civ. 
App.  '98),  46  S.  W.  71. 

M's  agent  agreed  to  pay  plaintiff  a  commission  for  selling 
M  's  land,  and  defendant  offered  to  exchange  his  land  there- 
for and  for  $210  in  addition;  plaintiff  submitted  the  proposi- 
tion to  M's  agent,  who  accepted  it,  and  an  agreement  for  ex- 
change was  executed  by  such  agent  in  accordance  with  de- 
fendant's proposition  and  placed  in  plaintiff's  hands  to  have 
defendant  sign  it;  without  disclosing  the  fact  that  the  agree- 
ment for  exchange  had  already  been  executed  by  M,  plaintiff 
told  defendant  that  a  trade  could  be  made,  but  defendant 


290  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

said  he  would  pay  no  commission,  but  would  trade  even,  if 
such  a  trade  could  be  effected,  and  executed  a  written  agree- 
ment to  that  effect;  the  exchange  was  duly  made  on  the  terms 
first  proposed  by  defendant,  and  the  $210  paid  over  to  him. 
Held,  to  show  that  plaintiff  was  acting  as  M's  agent,  and  that 
he  was  not  entitled  to  recover  the  $210,  or  any  other  commis- 
sion from  defendant.  Wilson  v.  Webster,  88  Iowa,  514,  55 
N.  W.  571 ;  Braden  v.  Randies,  128  Iowa,  653,  105  N.  W.  195. 

Where  it  appears  that  a  real  estate  agent  employed  to  sell 
land  had  acted  in  similar  transactions  for  the  vendor,  that 
after  making  the  sale  the  agent  was  active  in  assisting  the 
vendee's  agent  in  clearing  up  some  defects  in  the  title;  that 
he  filled  up  a  deed  and  carried  it  to  the  vendor  to  sign,  and 
then  took  it  away,  without  objection  on  the  part  of  the  ven- 
dor, delivered  it  to  the  vendee's  agent  and  received  the  pur- 
chase money,  which  he  appropriated  to  his  own  use,  and  that 
the  vendor  subsequently  admitted  to  disinterested  persons  that 
she  had  authorized  the  agent  to  collect  the  money,  the  loss 
thereof  must  fall  on  the  vendor,  under  whose  authority  the 
agent  acted.  Frank  v.  Levy,  10  Ohio  Cir.  Ct.  R.  554.  Com- 
pare Rhode  v.  Marquis,  135  Mich.  48,  97  N.  W.  53. 

If  a  real  estate  agent  authorized  to  sell  land  at  a  given 
price,  three  years  after,  when  the  value  has  greatly  advanced 
and  is  rapidly  rising,  sells  the  same  at  the  price  named,  and 
at  a  great  sacrifice,  without  informing  the  principal  of  the 
rise  in  value,  this  will  be  such  a  fraud  upon  the  principal 
that  a  court  of  equity  will  refuse  to  enforce  a  conveyance  to 
the  purchaser.  Proudfoot  v.  Wightman,  78  111.  553.  See  Wil- 
kinson v.  Churchill,  114  Mass.  184. 

Defendants  signed  and  acknowledged  a  note  and  deed  of 
trust,  and  left  them  with  their  agent,  a  professed  real  estate 
and  loan  broker,  for  the  purpose  of  having  him  obtain  the 
amount  of  the  note  from  complainant,  to  whom  the  note  was 
made  payable;  the  agent  presented  the  instrument  to  com- 
plainant, who  paid  over  to  him  the  amount  of  the  note  in 
good  faith,  and  took  the  note  and  deed ;  the  agent  fraudulently 
reported  that  he  could  not  use  the  note  and  trust  deed,  and 
in  the  presence  of  one  of  the  defendants  tore  up  and  destroyed 
what  purported  to  be  said  note  and  trust  deed.  Held,  that 


PRINCIPAL  AND  AGENT.  291 

defendants  were  not  entitled  to  be  relieved  against  the  enforce- 
ment of  the  instrument.  Kallbom  v.  Lipp,  20  111.  App.  414. 
See  Sees.  99,  313,  315,  316. 

Plaintiff  authorized  defendants  to  sell  his  land  for  a  cash 
payment  and  notes,  and  on  their  representation  that  they  had 
found  a  purchaser,  and  the  cash  payment  and  notes  were  ready 
to  be  delivered  to  him,  executed  and  gave  them  a  bond  for 
title,  blank  as  to  the  name  of  the  purchaser;  defendant  failed 
to  deliver  the  cash  and  notes  on  demand  of  plaintiff,  and  af- 
terwards filled  in  the  bond  with  the  name  of  a  purchaser. 
Held,  that  defendants'  authority  as  plaintiff's  agents  to  use 
the  bond  for  title  determined  when  they  failed  to  deliver  the 
cash  and  notes.  Patton  v.  Cook,  83  Iowa,  71,  48  N.  W.  994. 

An  agent  employed  to  sell  land,  who  becomes  the  purchaser 
and  conceals  from  the  principal  that  a  greater  price  might 
have  been  got  from  another,  is  guilty  of  fraud,  and  the  con- 
tract ought  to  be  vacated;  he  will  be  compelled  to  reconvey 
the  land  on  payment  of  the  purchase  money,  or  so  much  as 
has  been  paid,  and  to  account  for  the  rents  and  profits  re- 
ceived by  him.  Moseley  v.  Buck,  3  Munf.  (Va.)  232;  Rod- 
man v.  Manning  (Or.  Sup.  '09),  99  P.  657,  1135. 

Where  one  intrusts  money  to  an  agent  to  purchase  land  for 
him,  it  is  a  fraud  for  the  agent  to  purchase  the  land  in  his 
own  name  and  for  his  own  benefit,  and  equity  will  interpose 
for  the  relief  of  the  principal  by  compelling  a  conveyance  to 
him  of  the  land  so  purchased  by  the  agent.  Ehea  v.  Puryear, 
26  Ark.  344;  White  v.  Ward,  26  Ark.  445;  Harrison  v.  Craven, 
188  Mo.  590,  875  S.  W.  962. 

If  an  agent  effects  a  sale  of  the  land  of  his  principal  by  false 
representations,  or  other  fraud,  without  the  authority  or  knowl- 
edge of  the  principal,  the  latter  is  chargeable  with  such  fraud, 
in  the  same  manner  as  if  he  had  known  or  authorized  it.  Law  v. 
Grant,  37  Wis.  548;  Bagley  v.  Paris,  179  P.  795,  --  Wash.  Sup. 
— .  Compare  Harrison  v.  Lakeman,  189  Mo.  581,  88  S.  W.  53. 
Where  one  takes  a  conveyance  from  an  agent  authorized  to  sell 
and  convey  the  land,  knowing  of  the  fraud  or  breach  of  trust 
of  the  agent,  he  can  not  insist  on  the  validity  of  the  sale.  Morris 
v.  Terrill,  2  Rand.  (Va.),  6.  See  also  Sec.  845. 


292  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

Defendant  contracted  with  the  owner  of  land  for  an  option 
on  it  for  a  certain  time,  and  at  a  certain  price,  and,  if  he 
effected  a  sale,  he  was  to  receive  a  commission  therefor;  also, 
for  an  extension  of  the  time  he  should  pay  $200  which,  in  case 
he  should  "buy  the  land  or  find  a  purchaser"  therefor,  was 
to  be  deducted  from  the  price;  defendant  then  contracted  with 
plaintiff,  a  non-resident,  to  "procure  the  purchase  for  and  con- 
veyance to"  plaintiff  of  the  land  in  question  at  a  much  higher 
price,  to  act  as  plaintiff's  agent  in  the  management  of  the 
land,  that  all  the  proceeds  of  the  sales  should  be  applied  to 
the  reimbursement  of  plaintiff,  with  five  per  cent,  interest  and 
expenses;  that  the  surplus  should  be  equally  divided  between 
plaintiff  and  defendant;  defendant  appropriated  the  difference 
between  the  amount  received  from  plaintiff  and  the  sum  paid 
to  the  vendor,  concealing  from  plaintiff  the  difference  in  price. 
Held,  that  plaintiff  could  recover  the  amount  so  retained  by 
the  fraud  of  the  defendant.  Hewitt  v.  Young,  82  Iowa,  224, 
47  N.  W.  1084;  DeL'Archerie  v.  Rutherford  (Wash.  '09),  102 
P.  1033. 

An  agent  for  the  owner  of  real  estate  conducted  a  negotia- 
tion for  the  sale  of  the  same  on  behalf  of  the  owner,  on  the 
one  hand,  and  was  really,  on  the  other  hand,  purchasing  for 
himself,  jointly  with  an  ostensible  purchaser,  although  the 
transaction  purported  to  be  entirely  between  the  owner  and 
such  ostensible  purchaser.  Held,  that  the  transaction  was  a 
constructive  fraud  upon  the  owner,  and  that  a  purchase  thus 
made  could  not  be  sustained.  Hughes  v.  Washington,  72  111. 
84. 

Where  a  real  estate  agent  was  acting  under  a  contract  with 
the  owner  of  a  lot,  by  which  he  was  to  receive  a  certain  com- 
mission in  the  event  he  should  sell  the  lot  for  not  less  than 
a  certain  sum,  it  was  his  duty  before  changing  that  contract 
for  another  more  advantageous  to  himself,  to  impart  to  his 
principal  all  the  information  which  he  had,  and  especially  to 
inform  the  principal  of  negotiations  then  pending  for  a  sale 
of  the  lot,  and  his  failure  to  do  so  was  a  fraud  upon  the  prin- 
cipal's rights,  and  relieved  the  principal  from  all  obligations 
to  perform  the  new  contract.  Edmonson  v.  Baker,  12  Ky.  L. 
R.  (abst.)  93. 


PRINCIPAL  AND  AGENT.  293 

Defendant  applied  to  a  real  estate  agent  for  a  mortgage 
loan;  three  unsatisfied  mortgages  were  to  be  paid  with  the 
proceeds  of  the  loan;  plaintiff  agreed  with  the  agent  to  make 
the  loan  and  gave  the  agent  a  check  for  the  amount,  taking 
a  mortgage  on  the  property,  the  agent  assuring  him  that  he 
would  search  the  title  and  see  that  plaintiff  had  a  first  mort- 
gage, but  not  informing  him  of  the  outstanding  incumbrances ; 
on  execution  of  the  mortgage  defendant  instructed  the  agent 
to  pay  off  the  three  outstanding  mortgages  with  a  part  of  the 
money  in  his  possession;  the  agent  paid  off  one  of  the  three 
mortgages  only  and  appropriated  the  rest  of  the  money.  Held, 
that  the  payment  of  the  amount  of  the  loan  to  the  agent  was 
a  payment  to  him  as  agent  of  defendant.  Henker  v.  Schwicker, 
73  N.  Y.  S.  656,  67  App.  Div.  196;  affirmed  174  N.  Y.  298, 
66  N.  E.  971. 

In  a  suit  against  a  real  estate  broker,  a  lawyer,  by  a  former 
customer  or  client,  to  vacate  certain  deeds  procured  by  him 
to  be  executed  by  her  in  his  interest,  and  for  the  cancellation 
of  an  alleged  compromise  agreement  confirming  such  deeds, 
it  was  held  that,  on  a  review  of  the  evidence,  showing,  among 
other  things,  that  the  defendant  had  purchased  one  interest 
from  the  complainant  for  $1,175,  worth  $2,000,  and  that 
shortly  prior  thereto,  he  had  collected  over  $800  for  her,  for 
which  he  failed  to  account,  that  whether,  in  view  of  the  fidu- 
ciary relations  of  the  defendant  to  the  complainant,  the  bur- 
den was  on  him  to  show  the  validity  of  the  transaction,  the 
testimony,  as  a  whole,  was  sufficient  to  justify  a  decree  va- 
cating the  deeds  and  cancelling  the  agreement.  Holtzman  v. 
Linton,  27  App.  D.  C.  241. 

Where  a  land-owner  sued  his  brokers,  who  had  effected  a 
sale,  to  recover  a  portion  of  the  purchase  money  which  had 
been  retained  by  them,  on  the  ground  that  the  contract  was 
not  binding  on  him,  because  he  had  been  fraudulently  induced 
to  enter  into  it  by  the  act  of  the  defendants  in  not  correctly 
reading  the  contract  to  him,  and  also  on  the  ground  that  the 
contract  had  been  nullified  by  the  alteration  thereof  by  de- 
fendants, an  instruction  that,  if  plaintiff  signed  the  original 
contract,  and  defendants,  in  reading  it  to  him  had  fraudu- 
lently deceived  him,  then  the  contract  was  not  binding,  was 


294  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

not  erroneous,  on  the  theory  that  the  action  was  not  one  for  the 
cancellation  of  a  contract.  Harrison  v.  Lakeman,  189  Mo.  581, 
88  S.  W.  53.  Compare  Law  v.  Grant,  37  Wis.  548. 

Where  a  broker  employed  to  sell  at  the  highest  obtainable 
price  makes  an  arrangement  with  the  prospective  purchaser  to 
pay  him  a  commission,  this  fraud  deprives  him  of  the  right  to  re- 
cover from  the  vendor.  Tasse  v.  Kindt,  125  Wis.  631,  104  N.  W. 
703 ;  Raner*s  Law  &  Coll  Co.  v.  Bradbury,  3  Cal.  App.  256,  84 
P.  1007;  New  ell-Murdoch  Realty  Co.  v.  Wiclcham,  190  P.  359, 
—  Cal.  Sup.  — . 

If  a  broker  employed  to  purchase  property  overstates  to  his 
principal  the  price  at  which  it  may  be  bought,  and  appropriates 
the  difference,  the  principal  may  recover  the  excess  wrongfully  ob- 
tained. Healey  v.  Martin,  68  N.  Y.  S.  413,  33  Misc.  236;  War- 
ren v.  Burt,  58  Fed.  101,  7  C.  C.  A.  105. 

As  a  general  rule,  where  one  is  employed  by  the  owner  of 
property  to  sell  it,  he  can  not  sell  it  to  himself  alone,  or  in 
company  with  others,  without  the  consent  of  the  owner;  but  in 
the  present  case  there  was  evidence  to  show  that  the  owner  con- 
sented to  the  making  of  such  a  sale,  provided  that  he  should  re- 
ceive a  certain  amount,  without  liability  on  his  part  for  commis- 
sions. Mitchell  v.  Gifford  (Ga.  Sup.  '10),  67  S.  B.  197  (Sylla- 
bus). 

Plaintiff  employed  defendant  as  its  agent  to  buy  a  mine  for 
not  to  exceed  $150,000.  Defendant  actually  bought  it  for  $90,000, 
concealed  the  fact  from  plaintiff,  and  fraudulently  caused  it  to 
be  conveyed  to  a  confederate,  and  by  representing  that  he  had 
bought  it  for  $150,000  induced  plaintiff  to  execute  a  contract 
with  the  confederate,  agreeing  to  buy  the  mine  at  that  price, 
$20,000  to  be  paid  in  cash,  $90,000  in  one  year  and  $40,000  in 
eighteen  months.  Plaintiff  paid  the  cash  payment,  and  after  ob- 
taining a  reduction  of  the  remainder  to  $110,000,  paid  that  sum 
also,  thus  by  reason  of  deceit  and  fraud  paid  $40,000  more  than 
the  actual  price  for  which  defendant  purchased  for  his  account; 
held,  that  these  facts  alleged  and  found  sufficiently  made  out  a 
case  of  damages  for  deceit  and  fraud,  and  entitled  plaintiff  to  a 
judgment  of  recovery  for  $40,000.  Gt.  Western  Gold  Co.  v. 
Chambers,  101  P.  6,  155  Cal.  364;  Mabry  v.  Randolph,  94  P. 
403,  7  Cal.  App.  424. 


PRINCIPAL  AND  AGENT.  295 

Where  a  real  estate  broker  received  an  offer  of  exchange  which 
would  be  advantageous  to  his  principal,  and  fraudulently  mis- 
represents such  offer  and  prevents  an  exchange,  and  the  princi- 
pal's tenant  easily  consents  to  the  transfer  of  lease  to  the  prop- 
erty to  be  taken  in  exchange,  and  that  the  tenant's  agreement 
is  not  in  writing  and  voidable,  is  no  defense  to  the  principal's 
action  against  the  broker  for  damages  from  the  fraud.  Maul  v. 
Cole,  144  N.  W.  247,  94  Feb.  714. 

Where  a  real  estate  broker  fraudulently  induced  his  principal 
to  trade  property  on  a  valuation  of  $4,000,  and  sold  it  for  $5,750, 
in  an  action  by  the  principal  against  the  broker  for  the  differ- 
ence, the  latter  could  not  recoup  the  amount  of  expenses  incurred 
in  making  the  sale  nor  the  portion  of  the  profits  paid  the  one 
who  was  associated  with  him  in  the  fraud.  Van  Eaalte  v.  Ep- 
stein, 99  S.  W.  1077,  202  Mo.  173;  Stewart  v.  Preston,  137  P. 
993,  77  Wash.  559. 

One  who  makes  a  fraudulent  sale  of  his  principal's  property 
as  agent,  under  a  power  of  attorney,  which  entitled  him  to  a  share 
of  the  profits,  and  who  has  a  secret  interest  in  the  purchase,  on 
the  cancellation  of  the  deed  and  direction  of  an  accounting,  by 
the  purchaser  for  the  proceeds  or  portions  resold  by  them,  can 
not  take  anything  under  the  provisions  of  the  power  of  attorney. 
Snow  v.  Hazelwood,  179  P.  182,  102  C.  C.  A.  448,  decree  amend, 
and  re.  den.,  181  F.  966,  104  C.  C.  A.  430. 

In  a  suit  to  cancel  a  conveyance  taken  by  brokers  fraudulently 
in  their  own  name,  on  an  exchange  of  land  in  behalf  of  their 
principal,  the  brokers  have  no  claim  to  compensation  on  the  con- 
veyance being  set  aside  for  the  fraud.  Dean  v.  Roberts,  62  S.  44, 
182  Ala.  221. 

Where  a  broker  employed  to  use  his  best  endeavors  to  sell 
property  at  a  sum  not  less  than  $20,000  for  commission,  sought 
to  induce  a  corporation  to  take  the  property  at  about  $50,000, 
$11,000  of  which  should  go  to  him  and  the  balance  of  the  excess 
over  20,000  to  stockholders,  he  was  guilty  of  misconduct  depriving 
him  of  his  right  to  a  commission.  Sarikey  v.  Cramer,  131  P.  288, 
24  Colo.  App.  16;  Schlerfenbano  v.  Eundlaken,  71  A.  899,  81 
Conn.  623. 

A  real  estate  broker,  on  being  compelled  to  account  for  profits 
received  from  an  unfair  purchase  for  himself  of  the  subject  of 


296  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

agency,  is  not  entitled  to  allowance  for  collecting  rents  while  he 
wrongfully  withheld  the  property.  Stemon  v.  Gavin,  99  K  E. 
663,  255  111.  480. 

Where  a  broker  authorized  to  sell  property  for  $1,600,  to  re- 
ceive $75  for  a  commission,  sells  for  $1,700,  but  reported  a  sale 
for  $1,600  to  the  broker's  wife,  giving  her  maiden  name,  and  the 
principal  repudiated  the  sale,  the  broker  was  not  entitled  to  com- 
missions. Boll  v.  Martin,  187  111.  App.  266. 

Where  a  real  estate  broker  fraudulently  misrepresents  the  finan- 
cial ability  of  a  purchaser,  and  the  principal,  on  discovering  that 
tEe  purchaser  is  unable  to  fully  carry  out  the  contract,  rescinds 
in"  proper  manner,  the  broker  is  entitled  to  at  least  a  portion  of 
KIs  commission.  Meyer  v.  Keating  Land  &  Mtge.  Co.,  148  N.  W. 
452,  126  Minn.  409. 

Contract  between  plaintiff  and  defendant  looking  to  the  pur- 
cKase  of  real  estate  at  price  fixed,  by  defendant's  principal ;  held, 
given  in  fraud  of  the  owner  so  as  to  invalidate  the  contract.  Tay- 
lor v.  'Nelson,  147  P.  1189,  26  Cal.  App.  681. 

r&  sale  of  real  estate  can  not  be  sustained  when  one  who  acted 
as  the  ostensible  agent  for  the  vendor  was  in  reality  the  secret 
Sgent  of  the  purchaser,  unless  principal,  after  full  knowledge,  con- 
firmed the  acts  of  the  agent.  'Evans  v.  Brown,  125  P.  469,  33 
"OH.  323. 

In  an  action  for  fraud  in  procuring  contract  for  exchange  of 
defendant's  real  estate  for  plaintiff's  stock  of  goods,  that  defend- 
ant, real  estate  brokers,  deceived  plaintiff,  their  liability  could  not 
"be  minified  because  they  were  acting  as  his  agents  in  the  trans- 
action. HfcCann  v.  Clark,  163  K  W.  222,  —  Iowa  Sup.  — . 

Where  defendant  corporation,  acting  as  brokers  for  plaintiff, 
sell  at  $1,200,  itself  purchasing  at  the  price,  less  commission  to 
it  of  $1,100,  and  resells  for  $2,000,  having  had  that  in  view,  all 
without  disclosing  the  purchase  for  itself  to  plaintiffs  of  price 
received,  it  was  liable  for  profits.  Clark  v.  Rogers  Foundry  & 
'Mfg.  Co.,  199  S.  W.  576,  —  Mo.  App.  — . 

Though  defendant,  broker,  with  whom  plaintiff  listed  property 
for  sale  or  trade,  procured  plaintiff's  signature  to  earnest  money 
contract  under  which  the  purchaser  agreed,  in  case  of  default,  to 
forfeit  such  earnest  money  to  defendant;  held,  that  defendant 
was  liable  to  plaintiff  for  amount  of  earnest  money  forfeited  by 


PRINCIPAL  AND  AGENT.  297 

purchaser,  the  insertion  of  the  clause  "for  defendant's  own  bene- 
fit/' being  unauthorized,  and  plaintiff's  signature  procured  by 
fraud.  Pederson  v.  Johnson,  172  N.  W.  723,  —  Wis.  Sup.  — . 

That  defendant  broker  had  agreed  to  pay  to  another  a  part  of 
the  commission  which  he  was  to  receive  in  no  way  affected  his 
liability  to  his  principal  for  earnest  money  forfeited  by  the 
buyer,  and  to  which  principal  was  entitled.  Id. 

Sec.  315.    Fraud  of  broker  against  third  persons. 

If  in  negotiating  a  contract  in  behalf  of  the  principal  the 
broker  is  guilty  of  fraud  as  to  the  other  contracting  party,  he  is 
liable  to  him  therefor  in  damages.  Rice  v.  Porter,  21  Ky.  L.  E. 
871,  53  S.  W.  285,  22  Ky.  L.  E.  1704,  61  S.  W.  266;  Todd  v. 
Bourke,  27  La.  Ann.  385;  Hardacre  v.  Stewart,  5  Esp.  (Eng.) 
103 ;  Baker  v.  Brown,  82  Cal.  64,  22  P.  879 ;  Hussey  v.  Michael, 
138  P.  596,  91  Kan.  542 ;  Holcanson  v.  Oatman,  131  K  W.  Ill, 

165  Mich.  512,  35  L.  E.  A.  (K  S.),  423;  Hack  v.  Grain,  177  S. 
W.  587,  —  Mo.  Sup.  — ;  Carsin  v.  Schoenfeld,  166  1ST.  W.  23, 

166  Wis.  401,  L.  E.  A.  1918  C,  162. 

If  a  broker  employed  to  sell  property  which  is  subject  to  in- 
cumbrances  misrepresents  or  conceals  the  fact  that  the  prop- 
erty is  incumbered,  he  is  liable  to  the  purchaser  in  damages. 
Eiley  v.  Bell,  120  Iowa,  618,  95  N.  W.  170;  CMsholm  v.  Gads- 
den,  1  Strob.  (S.  C.)  220;  Arnot  v.  Biscoe,  I  Ves.  95  (Eng.) 
27  Eng.  Kep.  Eeprint  914. 

Where  an  agent  for  the  sale  of  a  mining  property  repre- 
sented to  a  purchaser  that  he  was  to  receive  a  certain  com- 
mission on  the  sale  from  the  owners,  when  in  fact  he  was  paid 
five  times  that  amount,  the  price  paid  by  the  purchaser  should 
be  abated  in  the  amount  of  the  difference  between  the  com- 
mission received  and  the  one  specified.  Henry  v.  Mayer,  6 
Ari.  103,  53  P.  590. 

An  agent  having  authority  to  sell  both  real  and  personal 
property  for  a  certain  sum  can  not,  without  the  consent  of 
his  principal,  take  over  to  himself  the  personal  property  on 
receiving  the  sum  for  the  real  estate.  Northup  v.  Bathrick, 
80  Neb.  36,  113  N.  W.  808.  Where  agents  for  the  sale  of  land 
concealed  from  the  purchasers  the  fact  that  they  were  part 


298  AMERICAN  LAW  SEAL  ESTATE  AGENCY. 

owners  of  the  land,  but  instead,  expressed  an  intention  to  pur- 
chase an  interest  themselves  upon  the  same  terms  as  they  were 
selling  to  the  purchasers,  such  representations  constituted  such 
a  fraud  as  would  avoid  the  purchase.  Wren  v.  Moncure,  95  Va. 
369,  28  S.  E.  588. 

Where  land  stood  in  the  name  of  a  third  party,  the  real 
owner  procured  a  broker  to  sell  the  land  who  made  false  repre- 
sentations as  to  its  value;  the  nominal  owner  of  the  land  had 
title  to  a  bond  and  mortgage  given  in  part  payment  of  the  price. 
Held,  that  the  fraud  of  the  real  owner  and  the  broker  was  im- 
putable  to  the  person  in  whose  name  they  acted.  Fairchild  v. 
McMahon,  139  N".  Y.  290,  34  N.  E.  779,  affirming  20  N.  Y.  S. 
31,  65  Hun,  621.  See  also  Sees.  99,  313,  314,  316. 

Where  land  was  sold  by  a  broker  who  made  representations  to 
induce  defendant  to  purchase,  which  were  known  to  the  broker 
to  be  false,  but  were  relied  upon  by  defendant  to  his  injury, 
plaintiff,  availing  himself  of  the  benefits  of  the  transaction,  is 
bound  by  the  representations,  whether  the  broker  was  his  ap- 
pointed agent  or  not.  Williamson  v.  Tyson,  105  Ala.  644,  17  S. 
336 ;  Copeland  v.  Tweedle,  122  P.  302,  61  Or.  303 ;  Perkins  v.  Or- 
field,  176  K  W.  157,  —  Minn.  Sup.  — .  See  also  Sees.  99,  313, 
314,  316. 

The  fact  that  one  who  was  employed  by  the  owner  to  procure 
a  purchaser  of  realty  violated  in  so  doing  his  contract  of  employ- 
ment with  a  third  person  engaged  in  the  realty  business,  did  not 
defeat  his  right  to  recover  his  commission  from  the  owner  on 
procuring  a  purchaser.  Pomarici  v.  Rosenblum,  120  N.  Y.  Sup. 
756. 

The  rule  of  caveat  emptor  does  not  apply  where  a  broker  au- 
thorized to  sell  land  for  $900  tells  the  customer,  unacquainted 
with  land  values,  that  he  has  induced  the  owner  to  reduce  the 
price  from  $1,500  to  $1,200,  and  that  at  the  latter  price  it  is  a 
bargain,  and  that  the  owner  will  not  accept  less.  Hokanson  v. 
Oatman,  131  N.  W.  Ill,  165  Mich.  512,  35  L.  E.  A.  (N.  S.),  423. 

A  broker  who,  being  authorized  to  sell  land  for  $900  and  to 
have  a  commission  therefor,  tells  a  customer  who,  to  his  knowl- 
edge, is  ignorant  of  land  values,  that  he  has  induced  the  owner 
to  reduce  the  price  from  $1,500  to  $1,200,  and  that  at  the  latter 
price  it  is  a  bargain,  and  that  the  owner  will  not  take  less, 


PRINCIPAL  AND  AGENT.  299 

whereby  he  induced  a  purchase,  he  pocketing  the  extra  $300,  is 
guilty  of  fraud  and  deceit,  making  him  liable  for  the  extra 
amount  to  the  purchaser.  Id. 

A  buyer  of  real  estate  can  not  recover  from  brokers  for  mis- 
representation as  to  the  amount  of  their  commissions,  and  the 
lowest  price  the  seller  would  take,  though  the  brokers,  by  the 
misrepresentation,  made  a  large  profit  at  the  expense  of  their 
principal,  no  damages  resulting  to  plaintiff.  McLennan  v.  Inv. 
Exc.  Co.,  156  S.  W.  730,  170  Mo.  App.  389. 

Landowners  who  employed  a  broker  to  procure  a  purchaser, 
held,  not  bound  by  his  misrepresentations  to  defendants,  with 
whom  he  entered  into  an  agreement  to  jointly  purchase  the  land, 
such  misrepresentation  not  being  made  within  the  agency.  Leg- 
geit  v.  Moore,  154  N.  W.  804,  36  S.  D.  288. 

Misrepresentations  as  to  the  character  of  land  are  within  the 
duties  of  an  agent  employed  merely  to  find  a  purchaser,  with  no 
authority  to  sell  or  exchange,  and  are  binding  on  the  principal. 
Martin  v.  Ince,  148  S.  W.  1178,  —  Tex.  Civ.  App.  — . 

Where  a  prospective  purchaser  of  land  agreed  to  pay  $7,040, 
and  executed  a  contract  with  certain  brokers  to  hold  it,  and  in- 
duced them,  for  a  commission,  to  accept  a  money  offer  of  $5,000, 
concealing  the  contract,  such  purchaser  was  a  party  to  the  fraud, 
and  could  not  recover  against  the  brokers  who  purchased  of  an- 
other for  $5,000,  and  sold  to  the  purchaser  for  $7,040,  to  recover 
the  difference  from  them.  Jines  v.  Astle,  170  S.  W.  1081,  — 
Tex.  Civ.  App.  — . 

A  contract  employing  an  agent  to  sell  land,  and  reciting  that 
no  misrepresentation  of  the  agent  shall  be  relied  on  by  the  pur- 
chasers, does  not  relieve  the  principal  from  liability  to  a  pur- 
chaser executing  a  contract  containing  such  a  stipulation  for  the 
fraud  of  the  agent  inducing  the  purchase.  Shepard  v.  Pabst,  135 
N.  W.  158,  149  Wis.  35. 

An  action  for  fraud  in  an  exchange  of  lands  will  not  lie 
against  owners  of  land,  where  they  merely  listed  it  with  the 
broker  for  sale  or  exchange,  and  where  he  made  fraudulent  state- 
ments, relied  upon,  without  owners'  knowledge  or  approval. 
Dellwo  v.  Peterson,  180  P.  167,  —  Idaho  Sup.  — . 

Where  a  real  estate  broker  acts  for  two  parties  with  adverse 
interests  in  effecting  exchange  of  lands,  with  the  knowledge  and 


300  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

consent  of  both,  neither  principal  is  liable  to  the  other  for  the 
broker's  tortious  acts,  without  collusion  or  direct  participation  of 
one  of  the  principals.  Ringer  v.  Winkins,  183  P.  986,  —  Idaho 
Sup.  — . 

Sec.  316.    Fraud  of  sub-agent. 

Plaintiff,  who  had  contracted  with  a  real  estate  agent  to  co- 
operate with  him  in  selling  to  a  third  person  certain  prop- 
erty, with  knowledge  that  such  person  was  willing  to  purchase 
at  a  certain  sum,  induced  the  owner  to  sell  for  less,  so  that 
he  could  make  the  difference.  Held,  that  he  could  not  recover 
from  the  real  estate  agent  his  agreed  proportion  of  the  com- 
mission. Talbott  v.  Luckett  (Md.  Sup.  '94),  30  A.  565. 

A  broker  was  employed  to  procure  a  purchaser  for  a  farm 
within  a  specified  time,  at  a  price  which  should  net  the  owner 
$11,000  and  the  broker  $875,  or  such  less  sum  as  should  be  sat- 
isfactory to  the  broker's  agent  having  charge  of  the  transac- 
tion; the  owner  sold  the  premises  to  a  purchaser  procured  by 
the  agent  of  the  broker  for  $11,000,  and  the  purchaser  paid 
the  agent  $100  for  commissions.  Held,  that  the  owner,  if  he 
knew  that  the  agent  in  conducting  the  sale  violated  the  in- 
structions of  the  broker,  was  liable  to  the  broker  for  commis- 
sions to  the  extent  of  $875,  on  the  ground  that  he  was  guilty 
of  fraud  on  the  broker.  Haven  v.  Tartar,  124  Mo.  App.  691, 
102  S.  W.  21.  See  also  Sees.  99,  313,  314,  315. 

A  vendor  of  land  receiving  the  benefits  of  a  transaction  is 
liable  for  fraudulent  representations  by  the  salesman,  though  he 
was  only  a  sub-agent.  Nelson  v.  Title  &  Trust  Co.,  52  Wash. 
258,  100  P.  730. 

A  real  estate  agent  who,  in  placing  land  for  sale  with  sub- 
agent,  fixed  the  selling  price,  and  knowing  that  the  sub-agent 
represented  to  purchasers  that  this  was  the  lowest  price  the  owner 
would  take,  received  the  benefit  of  such  representation,  was 
chargeable  with  the  damage  to  the  purchasers  from  their  reliance 
thereon.  Estes  v.  Crosby,  175  N.  W.  933,  amend,  or  man.  den., 
177  K  W.  512,  --  Wis.  Sup.  — . 

Sec.  317.    Fraud  of  principal  against  broker. 

Defendant  employed  plaintiff  to  sell  his  farm  and  some  per- 
sonal property,  on  an  understanding  that  the  plaintiff  should 


PRINCIPAL  AND  AGENT.  301 

receive  a  certain  commission  if  he  could  procure  a  purchaser 
for  $18,000,  otherwise  nothing;  plaintiff  secured  a  purchaser 
who  bid  $17,000  for  the  farm  and  defendant  rejected  the  offer, 
and  falsely  represented  to  plaintiff  that  he  had  concluded  to 
keep  the  property  and  settled  with  plaintiff  for  a  nominal  sum ; 
defendant  then  approached  the  bidder  and  sold  him  the  farm 
and  some  personal  property  for  $17,500,  and  sold  the  remain- 
der of  the  personal  property  on  the  public  market  for  $720. 
Held,  that  the  statement  having  been  fraudulently  made,  de- 
fendant was  liable  for  the  agreed  commission.  Bowe  v.  Gage, 
132  Wis.  441,  112  N.  W.  469 ;  Glentworth  v.  Luther,  21  Barb. 
(N.  Y.)  145;  McDermott  v.  Mahoney,  139  Iowa,  292,  115  N. 
W.  32;  McGovern  v.  Bennett,  146  Mich.  558,  109  N.  W.  1055, 
13  D.  L.  N.  853. 

If  a  principal,  in  order  to  defraud  the  broker  of  his  right 
to  a  commission,  conveys  the  property  to  a  third  person  for 
the  benefit  of  the  customer  found  by  the  broker,  and  the  rea- 
son for  the  act  being  to  conceal  the  same  from  the  knowledge 
of  the  broker,  the  latter  may  sue  for  the  commission;  and  it 
was  error  to  dismiss  the  complaint  because  the  proof  sustained 
an  action  for  fraud  and  did  not  prove  the  cause  of  action  al- 
leged.' Martin  v.  Fegan,  88  N.  Y.  S.  472,  95  App.  Div.  154; 
Glade  v.  E.  III.  Min.  Co.,  129  Mo.  App.  443,  107  S.  W.  1002. 
See  also  Sec.  4870.  A  principal  conspiring  with  a  sub-agent  ta 
deprive  the  broker  of  his  commission  is  liable  to  the  latter 
therefor.  Haven  v.  Tartar,  124  Mo.  App.  691,  102  S.  W.  21. 
See  also  Sees.  362,  487a. 

Eight  to  commission  may  not  be  defeated  by  the  fraudulent 
act  of  owner  in  withdrawing  the  property  from  the  broker  prior 
to  the  making  of  a  contract.  Anderson  v.  Crow,  151  S.  W.  1080, 
- —  Tex.  Civ.  App.  — . 

Before  a  broker  can  be  said  to  have  earned  his  commission,  he 
must  produce  a  buyer  within  the  time  specified  in  terms  of 
agency,  if  time  is  limited,  ready,  willing  and  able  to  purchase  at 
price  designated  by  principal,  but  if  principal  by  fraud  defeats 
broker's  efforts,  case  does  not  come  within  such  rule.  Ramezzano 
v.  'Avnasino,  189  P.  681,  —  Nev.  Sup.  — . 


302  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  318.    Fraud  of  third  persons  against  broker. 

Where  a  vendee  fraudulently  conceals  the  fact  that  she  pur- 
chased through  a  broker  employed  by  the  yendor,  and  represents 
that  a  third  person  was  the  procuring  cause  of  the  sale,  whereby 
the  vendor  is  induced  to  pay  the  commission  to  such  third  per- 
son, the  broker  can  not  sue  the  purchaser  for  the  lost  commis- 
sion, as  the  vendor's  liability  to  him  remains  unaffected  by  such 
payment  to  the  third  person.  Cohen  v.  Hirschfield,  16  Daly  (N. 
Y.),  96,  9  N.  Y.  S.  512.  A  broker  may  be  deprived  of  his  right 
to  commissions  by  the  fraudulent  conduct  or  misrepresentations 
of  third  persons  in  privity  with  him.  Thwing  v.  Clifford,  136 
Mass.  482. 

Sec.  319.    Fraud  of  principals  inter  se. 

Where  two  persons  owning  real  estate  intrust  one  with  the 
sale  thereof,  who  has  it  conveyed  to  a  third  person  for  a  price 
agreed  upon,  the  money  being  paid  by  the  joint  owner  with 
a  view  to  acquiring  title  to  the  property,  such  an  arrange- 
ment is  a  fraud  on  the  party  owning  the  other  moiety.  Eld- 
ridge  v.  Walker,  60  111.  230 ;  Hughes  v.  Washington,  72  IU.  84. 

Where  land  stood  in  the  name  of  a  third  party,  the  real 
owner  procured  a  broker  to  sell  the  land,  who  made  false  rep- 
resentations as  to  its  value;  the  nominal  owner  of  the  land 
had  title  to  a  bond  and  mortgage  given  in  part  payment  of 
the  price.  Held,  that  the  fraud  of  the  real  owner  and  the 
broker  was  imputable  to  the  person  in  whose  name  they  acted. 
Fairchild  v.  McMalion,  139  N.  Y.  290,  34  N.  E.  779.  A  real 
estate  broker  who  produces  one  ready  and  willing  to  purchase, 
and  an  executory  contract  of  sale  has  been  entered  into  be- 
tween the  principal  and  the  proposed  purchaser,  but  able 
to  do  so  only  by  perpetrating  a  fraud  on  a  third  person,  the. 
principal  refusing  to  execute,  is  not  entitled  to  a  commission. 
Zittle  v.  Schlesinger,  46  Neb.  244,  65  N.  W.  892;  Moskowitz 
v.  Hornberger,  46  N.  Y.  S.  462,  20  Misc.  558. 

Sec.  320.    Debatable  acts  of  broker  held  not  to  constitute 
fraud. 

A  broker  employed  to  find  a  buyer  is  not  necessarily  guilty 
of  fraud  because  he  seeks  to  induce  his  principal  to  reduce 


PBINCIPAL  AND  AGENT.  303 

the  price,  even  though  he  might  know  he  could  obtain  the  price 
asked.  Gorman  v.  Hargis,  6  Okla.  360,  50  P.  92.  Compare 
Hobart  v.  Sherburne,  66  Minn.  17,  68  N.  W.  841.  See  also 
Sees.  290,  291. 

It  is  not  an  act  of  disloyalty  after  obtaining  an  option  on 
land  at  the  lowest  price  for  which  the  owner  would  sell  and 
suspecting  that  his  employer  would  not  take  at  that  price,  for 
the  broker  with  his  employer's  knowledge  to  solicit  other  pur- 
chasers whom  he  informed  that  his  employer  should  have  the 
first  right  to  purchase.  Hinton  v.  Coleman,  76  Wis.  221,  45 
N.  W.  26.  A  broker  negotiated  a  sale  of  plaintiff's  land  to 
defendant,  but  had  the  deed  made  out  to  a  third  person,  who 
afterwards  conveyed  to  defendant.  A  few  weeks  after  the  sale 
defendant  agreed  to  let  the  broker  sell  the  land  for  him  at 
an  advance,  the  profits  to  be  equally  divided  between  them. 
Plaintiff  did  not  know  at  the  time  of  the  sale  that  defendant 
was  the  purchaser  and  there  was  then  no  arrangement  or  under- 
standing between  defendant  and  the  broker  as  to  any  resale 
of  the  property  or  division  of  the  profits.  Held,  that  there 
was  nothing  in  the  transaction  in  fraud  of  plaintiff,  and  the 
subsequent  sale  did  not  constitute  a  fraud  on  the  vendor. 
Lawrence  v.  Lay  ton,  145  111.  92,  34  N.  E.  53. 

A  real  estate  broker  is  not  liable  to  a  customer  for  false 
representations  respecting  lands,  where  he  states  that  his  in- 
formation is  derived  from  his  principal,  and  the  facts  respect- 
ing which  the  representations  are  made  are  not  such  as  would 
be  peculiarly  within  his  knowledge.  Griffing  v.  Diller,  21  N. 
Y.  S.  407. 

If  a  broker  acts  as  a  mere  middleman  his  conduct  in  con- 
cealing from  each  principal  his  agreement  with  the  other  is 
not  fraudulent.  Jarvis  v.  Schaefer,  105  N.  Y.  289,  11  N.  E. 
634. 

An  agent  authorized  by  contract  to  sell  real  estate  to  any 
purchaser  thereafter  to  be  secured,  is  not  guilty  of  fraud  for 
failing  to  disclose  the  identity  of  the  proposed  purchaser,  where 
it  appears  that  the  vendors  neither  asked  nor  made  any  at- 
tempt to  ascertain  who  such  purchaser  was.  Bank  v.  Garvey, 
66  Neb.  767,  92  N.  W.  1025,  affirmed  on  rehearing  66  Neb.  767, 
99  N.  W.  666. 


304  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Where  a  real  estate  agent  with  authority  to  sell  his  prin- 
cipal's land  reports  to  another  agent  of  the  principal  that  he 
can  not  sell  the  land  so  as  to  net  the  principal  a  certain  sum, 
and  that  he  is  making  a  sale  for  a  greater  sum,  but  that  the 
excess  will  be  retained  by  him  as  his  commission,  and  no  con- 
tract is  shown  that  he  shall  receive  any  specified  amount  for 
his  service,  though  the  amount  of  the  excess  is  not  disclosed, 
the  agent  commits  no  fraud  by  not  disclosing  such  amount. 
Deming  Inv.  Co.  v.  Meyer  (Okla.  Sup.  '07),  91  P.  846;  Ful- 
'ton  v.  Waiters,  216  Pa.  56,  64  A.  860.  Compare  Sec.  456. 

In  an  action  to  recover  a  real  estate  broker's  commissions, 
it  appeared  that  the  owners,  in  naming  their  price,  had  in- 
formed the  broker  that  they  were  willing  to  sell  for  less,  if 
necessary,  and  that  a  prospective  purchaser  who  had  obtained 
an  option  from  the  broker  was,  before  the  owners  had  reduced 
the  price,  negotiating  to  sell  the  land  to  a  third  person  for 
less  than  the  owners'  upset  price.  Held,  that  the  facts  did 
not  conclusively  prove  that  the  broker  had  acted  in  bad  faith. 
Harvey  v.  Lindsay,  117  Mich.  267,  75  N.  W.  627. 

Proof  that  an  owner  employing  a  broker  to  procure  a  pur- 
chaser allowed  the  broker  to  take  as  his  commission  a  part  of 
the  money  paid  by  the  purchaser  procured  by  him,  in  reliance 
on  the  broker's  representations  that  the  purchaser  was  able 
to  and  would  consummate  his  purchase  according  to  the  con- 
tract entered  into  between  him  and  the  owner,  and  that  the 
purchaser  was  insolvent,  was  insufficient  to  authorize  a  recov- 
ery by  the  owner  of  the  commissions  paid,  on  the  ground  of 
fraud  of  the  broker.  Moore  v.  Irvin,  89  Ark.  289,  116  S.  W. 
662. 

A  real  estate  broker  had  a  customer  desirous  of  purchasing 
property  of  a  particular  character,  but  the  customer  had  no 
definite  intention  of  buying  any  particular  property.  The 
broker  entered  into  negotiations  with  the  owner  to  employ  him 
to  procure  a  purchaser.  The  customer  purchased  the  prop- 
erty. Prior  to  the  broker's  employment  the  customer  had  not 
communicated  with  the  owner,  nor  with  any  one  representing 
him  in  relation  to  the  purchase.  The  broker  represented  to 
the  owner  that  he  thought  that  he  could  produce  a  purchaser 
willing  to  purchase  on  the  terms  specified,  on  his  being  al- 


PRINCIPAL  AND  AGENT.  305 

lowed  a  commission  for  so  doing.  Held,  that  the  broker  was 
not  guilty  of  fraud  in  obtaining  his  contract  to  procure  a  pur- 
chaser, and  he  could  recover  his  commissions.  Larson  v.  Thoma 
(Iowa  Sup.  '09),  121  N.  W.  1059. 

A  broker  does  not  forfeit  his  right  to  commissions  on  a  sale 
of  real  estate  that  he  was  instrumental  in  bringing  about,  be- 
cause he  had  other  real  estate  for  sale,  belonging  to  other  per- 
sons, which  he  tried  to  sell  to  the  same  purchaser.  Lemmon 
v.  Macklem  (Mich.  Sup.  '09),  122  N.  W.  77. 

Land  was  listed  with  a  real  estate  broker  at  a  stated  price  per 
acre,  there  being  no  agreement  as  to  commission.  After  some 
negotiations  owner  agreed  to  accept  a  less  price  per  acre  and  to 
pay  a  stated  commission.  A  certain  amount  was  to  be  paid  in 
cash  and  the  balance  by  a  mortgage.  The  broker  made  a  contract 
at  an  advanced  price,  and  of  this  he  did  not  inform  the  owner. 
The  agreement  was  not  carried  out,  as  the  owner  had,  unknown 
to  the  broker,  sold  the  land  in  question.  Held,  that  as  knowledge 
of  the  acts  must  have  come  to  the  notice  of  the  owner,  and  when 
the  transaction  was  consummated,  even  if  the  broker  intended  to 
demand  an  additional  commission,  though  he  was  not  legally  en- 
titled to  it,  yet  he  was  not  guilty  of  fraud  within  Civil  Code, 
Sec.  1203,  providing  that  fraud  is  a  question  of  fact  and  must 
be  deducible  from  the  evidence.  Luce  v.  Ash,  132  N.  W.  708,  28 
S.  D.  109. 

Where  vendor's  agent  did  not  describe  the  land  to  the  pur- 
chaser, but  merely  pointed  it  out  on  a  map  which  both  he  and 
the  purchaser  believed  to  be  correct,  but  which  incorrectly  showed 
a  creek  as  running  through  the  land,  he  was  not  guilty  of  fraudu- 
lent misrepresentations.  Dashiell  v.  Christian,  152  S.  W.  1112, 
—  Tex.  Civ.  App.  — . 

Brokers  were  entitled  to  receive  commissions,  though  they  in- 
duced the  president  of  a  corporation  to  agree  to  an  unconscion- 
able contract,  their  conduct  not  amounting  to  such  fraud  as  would 
deny  them  of  all  commissions.  Bassick  v.  Aetna  Expl.  Co.,  246 
P.  974. 

Sec.  321.    Points  of  practice  in  actions  for  fraud. 

The  vendee's  right  to  rescind  because  the  vendor  gave  a 
secret  commission  to  the  vendee's  agent  is  not  affected  by  the 


306  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

fact  that  a  part  of  the  commission  paid  by  the  vendor  to  the 
vendee's  agent  was  for  services  previously  rendered  by  such 
agent  in  former  transactions.  Lightcap  v.  Nicola,  34  Pa. 
Super.  Ct.  189.  See  also  Sec.  559. 

"Where  the  discovery  of  fraud  in  a  contract  for  the  purchase 
of  land  is  not  made  by  the  vendee  until  after  suit  has  been 
brought  for  the  purchase  money,  the  vendee  has  the  right  to 
set  up  the  fraud  as  ground  for  rescission  and  as  a  defense  to 
the  suit,  and  he  may  do  this  where  there  is  a  delay  of  nearly 
two  and  a  half  months  after  the  discovery  of  the  fraud,  if 
there  has  been  no  such  change  in  the  meantime  as  to  make 
the  rescission  inequitable.  Id.  Compare  Sec.  572. 

"Where  a  real  estate  broker  fraudulently  induces  his  prin- 
cipal to  trade  property  on  a  valuation  of  $4,400  and  sells  it 
for  $5,750,  in  an  action  by  the  principal  against  the  broker  for 
the  difference,  the  latter  could  not  recoup  the  amount  of  ex- 
penses incurred  in  making  the  sale,  nor  a  portion  of  the  price 
paid  one  who  was  associated  with  him  in  the  fraud.  Van 
Eaulte  v.  Epstein,  202  Mo.  173,  99  S.  W.  1077 ;  Great  Western 
Oold  Co.  v.  Chambers  (Cal.  Sup.  '09),  101  P.  6. 

In  an  action  to  recover  on  a  contract  for  commissions  for 
a  sale  of  real  estate,  in  which  defendant  alleged  that  the  con- 
tract was  procured  through  fraud,  and  after  plaintiff  had  ne- 
gotiated the  sale,  the  burden  of  proof  was  on  defendant.  Stein 
v.  Whitney,  23  Ky.  L.  R.  2179,  66  S.  W.  820.  Contra,  Hanna 
v.  Haynes,  42  Wash.  284,  84  P.  861. 

A  broker  employed  to  purchase  land,  who  conceals  from  the 
principal  the  fact  that  the  vendor  will  pay  the  broker  a  com- 
mission on  making  a  sale,  has  the  burden  of  proving  perfect 
fairness  in  the  transaction,  and,  in  the  absence  of  satisfactory 
proof,  equity  will  consider  him  as  guilty  of  constructive  fraud. 
Hanna  v.  Haynes,  42  Wash.  284,  84  P.  861.  Compare  Stein 
v.  Whitney,  23  Ky.  L.  E.  2179,  66  S.  W.  820. 

An  innocent  vendor  can  not  be  sued  in  tort  for  the  fraud 
of  his  agent  in  effecting  a  sale ;  in  such  a  case  the  vendee  may 
rescind  the  contract  and  reclaim  the  money  paid,  and  if  not 


PRINCIPAL  AND  AGENT.  307 

repaid,  may  sue  the  vendor  in  assumpsit  for  it,  or  lie  may 
sue  the  agent  for  the  deceit.  Kennedy  v.  McKay,  43  N.  J.  L. 
288.  A  recovery  in  an  action  by  a  principal  against  a  broker 
for  fraudulently  representing  that  the  worthless  property  on 
which  the  loan  was  made  was  good  security,  is  not  affected  by 
the  question  whether  he  shared  the  money  with  or  delivered 
any  part  of  it  to  the  pretended  borrower.  Rubens  v.  Mead, 
121  Cal.  17,  53  P.  432;  Van  Eaulte  v.  Epstein,  202  Mo.  173, 
99  S.  W.  1077,  supra. 

Although  the  owner  of  the  land  neither  authorized  another 
to  sell  it  for  him,  nor  has  authorized  the  false  representation 
made  in  the  course  of  the  sale,  yet  if  such  owner  accepts  the 
proceeds  of  the  transaction,  he  ratifies  the  acts  of  his  agent, 
and  may  be  held  liable  for  the  fraud  practiced  by  the  latter. 
Krunner  v.  Beach,  25  Hun  (N.  Y.),  293.  See  Sec..  24. 

The  rule  of  law  forbidding  the  admission  of  evidence  of  an 
oral  agreement  made  prior  to  or  contemporaneously  with  a 
written  agreement,  does  not  preclude  the  admission  of  evidence 
tending  to  show  that  the  written  agreement  in  question  was 
fraudulently  obtained,  or  that  it  resulted  from  accident  or  mu- 
tual mistake.  Gulp  v.  Powell,  68  Mo.  App.  238. 

It  is  immaterial  whether  the  design  is  fraudulent  or  not,  a 
sale  by  an  agent  of  his  own  property  to  his  principal  can  be 
set  aside  by  the  latter  on  discovery  of  the  facts.  Bain  v. 
Brown,  56  N.  Y.  285;  Kutz  v.  Fisher,  8  Kan.  90;  Ackeriburg 
v.  McCool,  36  Ind.  473.  See  also  Sec.  389b. 

Where  the  assignee  of  a  purchaser  of  land  from  a  broker 
sued  the  principal  for  breach  of  contract,  defendant  could  not 
impeach  the  contract,  on  the  ground  that  it  was  not  signed 
by  the  principal,  and  for  fraud,  without  pleading  such  de- 
fense. Kurinsky  v.  Lynch,  201  Mass.  28,  87  N.  E.  70. 

Fraud  of  a  broker  forfeiting  his  commission  in  representing 
adverse  interests  may  never  be  presumed,  but  must  be  found  from 
substantial  evidence.  Maddux  v.  St.  Louis  Union  Trust  Co.,  171 
S.  W.  669,  186  Mo.  App.  138. 


CHAPTER  V 


SECTION. 

322.  When  a  broker  is  and  when 

not  liable  for  interest. 

323.  Broker      obtaining       interest 

hostile  to  principal. 

324.  Improvement  of  property  be- 

yond  authority   of   agent. 

325.  Agent  neglecting  to  place  in- 

surance liable. 

326.  Illegal  purposes. 

327.  Illegal  contract. 

328.  Implied  powers. 

329.  Joint  owner  condoning  fraud 

liable. 

329a.  Liability  of  purchaser  col- 
luding with  agent. 

330.  Agent  to   sell   has   no  power 

to  grant  license  to  cut  tim- 
ber. 

331.  What  a  principal  must  do  to 

escape  liability. 

332.  Power    confirming    sales    con- 

fers power  to  sell. 

333.  Power   to   sell   land   acquired 

afterward. 

334.  Power  to  sell  land  not  con- 

veyed. 

335.  Power  to  sell  land  on  credit, 

may  receive  payment. 

336.  Power  to  sell  for   settlement 

not  violated,  when. 

337.  Power     to     sell     land,     not 

power  to  lease. 

337a.  Authority  of  agent  construed 
to  authorize  authority  to 
sell,  but  not  to  convey  real 
estate. 

337b.  Power  to  sell  does  not  in- 
clude power  to  give  an  po- 
tion. 

308 


SECTION. 

337c.  Broker  unauthorized  to  trans- 
fer principal's  note  and 
mortgage. 

338.  Agent  buying  liable  for  value 

of  land  warrants. 

339.  Authority  to  locate  and  sur- 

vey, no  power  to  sell. 

340.  Power  to  sell  in  lots  none  to 

sell  otherwise. 

341.  Broker  not  liable  for  mutual 

mistake  as  to  power. 

341a.  Broker  entitled  to  commis- 
sion on  land  sold  through 
mistake  of  owner. 

341b.  Broker  not  liable  to  third 
parties  for  acts  in  represen- 
tative capacity. 

342.  Agent  to  sell   land  can  take 

nothing  but   money. 

343.  Broker    has    no    right   to    re- 

ceive  Mexican   money. 

344.  When    broker    need    not    tell 

principal    what     land     sold 
for. 

345.  Agent  knowing  defect  in  title 

can  not  acquire. 

346.  Broker    guilty    of    negligence 

barred  commission. 

347.  Owner    liable    to    prospective 

tenants  for  injuries. 

348.  Brokerage    contract    not    set 

aside  for  fraud. 

349.  Broker  liable  for  loss  through. 

negligence. 

350.  Broker     departing     from     in- 

structions liable. 

351.  Broker,   when  not   liable   for 

loss  on  forged  notes. 

352.  Broker,  when  not  authorized 

to  collect  notes. 


PBINCIPAL  AND  AGENT.  309 

SECTION.  SECTION. 

353.  Maker  may  pay  when  broker      361.    When  notice  waived. 

has  note.  362.     When    principal    can   not   es- 

354.  Agent   has   no   power   to   re-  cape    liability    for    commis- 

ceive  before  due.  sions. 

355.  Agent  to  collect  interest,  no      362a.  Oral    agreement    to    act    as 

power    to    collect   principal.  sales  manager  upheld. 

356.  Agent  doing  all  business  may      363.    Agent  to  make  written,   can 

collect  note.  not  make  oral  contract. 

357.  Debtor  should  see  that  agent      363a.  A  broker  not  entitled  to  corn- 

has  security.  mission     on     contract     not 

358.  When  broker  entitled  only  to  conforming   with    authority. 

nominal  damages.  364.     Agent    under    oral    authority 

359.  Notice  to  agent.  can    not    bind    by    written 

360.  Broker  must  give  notice.  covenants. 

Sec.  322.    When  a  broker  is  and  when  not  liable  for  interest. 

A  real  estate  broker  receiving  money  and  not  applying  it 
to  the  purposes  specified  in  the  agreement  under  which  he 
acted,  within  a  reasonable  time,  is  chargeable  with  interest. 
Harrison  v.  Long,  4  Desaus.  (S.  C.)  110.  A  broker  is  not  lia- 
ble for  interest  on  money  of  his  principal  unless  in  default, 
or  unless  he  has  made  use  of  the  money  for  his  own  profit. 
Williams  v.  Storrs,  6  Johns.  Ch.  (N.  Y.)  353. 

Where  a  broker  was  only  entitled  to  commissions  out  of  the 
last  three  of  a  series  of  notes  to  be  given  by  the  purchaser 
for  the  property,  which  were  to  be  executed  as  of  September 
1,  1902,  and  were  to  mature  on  the  first  days  of  July,  August 
and  September,  1907,  the  broker,  on  the  principal's  failure 
to  complete  the  contract,  was  only  entitled  to  recover  interest 
on  the  contract  commissions  from  August  1,  1907.  Bankers' 
Loan  &  Inv.  Co.  v.  Spindle,  108  Va.  426,  62  S.  E.  266. 

Broker  held  entitled  to  recover  interest  on  the  value  of  his  ser- 
vices in  effecting  a  sale  of  timber  land  from  the  date  the  owner's 
liability  was  denied.  Paschall  &  Gresham  v.  Gilliss,  75  S.  E. 
220,  113  Va.  643,  Ann.  Gas.  1913  E,  778. 

Sec.  323.    Broker  obtaining  interest  hostile  to  principal. 

Where  a  broker  who  procured  a  sale  of  bonds,  secretly  ob- 
tained an  interest  hostile  to  his  principal,  he  was  entitled  to  re- 
cover the  commission  paid  him.  Guidetti  v.  Tuoti,  102  N.  Y.  S. 
499,  52  Misc.  657;  Campbell  v.  Baxter,  41  Neb.  729,  60  N.  W. 


310  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

90;  Kuntz  v.  Tonnele,  84  A.  624,  80  K  J.  Eq.  373.     See  also 
Sec.  382. 

If  vendor's  broker,  to  whom  purchaser  had  made  payments, 
agreed  to  get  purchaser  out  of  the  deal  if  agent  could  keep  money 
so  paid,  he  would  be  guilty  of  a  breach  of  faith  with  vendor. 
State  v.  Skinner,  191  P.  148,  —  Wash.  Sup.  — . 

Sec.  324.  Improvement  of  property  beyond  authority  of  agent. 

Unless  specially  authorized,  a  real  estate  agent  has  no  right 
to  contract  for  the  improvement  of  property.  Riverview  Land 
Co.  v.  Dance,  98  Va.  239,  35  S.  E.  720.  See  reference  under 
Sec.  307. 

Sec.  325.    Agent  neglecting  to  place  insurance,  followed  by 

loss,  liable. 

An  agent  whose  duty  it  is  to  insure  the  property  of  his 
principal,  and  who  neglects  to  do  so,  is  liable  to  the  latter  for 
any  loss  of  property  occasioned  by  the  peril  that  he  should 
have  insured  against.  Strong  v.  High,  2  Rob.  (La.)  103.  See 
also  Sees.  346,  349. 

Sec.  326.    Illegal  purposes. 

An  agent  of  the  owner  of  property  is  not  presumed  to  have 
any  authority  to  lease  the  premises  for  an  illegal  purpose. 
Stover  v.  Flower,  120  Iowa,  514,  94  N.  W.  1100 

Sec.  327.    Illegal  contract. 

Where  the  contract  negotiated  is  illegal,  the  broker  can  not 
recover  for  his  services,  though  his  principal  has  received  the 
money  arising  from  it.  B elding  v.  Pitkin,  2  Caines  (N.  Y.), 
147 ;  Skirvin  v.  Gardner,  129  P.  729,  36  Okl.  613. 

Sec.  328.    Implied  powers. 

(a)  A  non-resident  owner  employing  a  non-resident  agent  to 
sell,  impliedly  authorizes  the  latter  to  employ  a  broker  to  effect 
a  sale.  Eastland  v.  Maney,  36  Tex.  Civ.  App.  147,  81  S.  W. 
574. 

(&)  If  the  contract  of  employment  fails  to  state  the  terms 
of  sale,  terms  satisfactory  to  the  principal  are  implied.  Fair- 


PRINCIPAL  AND  AGENT.  311 

child  v.  Cunningham,  84  Minn.  521,  88  N".  W.  15;  Montgomery 
v.  Knickerbocker,  50  N.  Y.  S.  128,  27  App.  Div.  117. 

(c)  A  contract  of  agency  will  not  be  construed  to  be  ex- 
clusive unless  established  expressly  or  by  clear  implication. 
'Crook  v.  Forst,  116  Ala.  395,  22  S.  540;  White  v.  Benton,  121 
Iowa,  354,  96  N.  W.  876;  Kidman  v.  Howard,  18  S.  D.  161, 
99  N.  W.  1104. 

(d}  A  revocation  may  be  implied  from  circumstances.  Brook- 
shire  v.  Brookshire,  8  Ired.  (N.  C.)  74. 

(e]  Authority  to  sell  and  convey  lands  for  cash  includes 
authority  in  the  agent  to  receive  payment  of  the  purchase 
money.  Yerby  v.  Grigsby,  9  Leigh  (Va.),  387. 

(/)  Authority  to  make  a  contract  for  the  sale  of  lands,  au- 
thorizes the  agent  to  receive  so  much  of  the  purchase  money 
as  is  paid  in  hand,  on  the  sale,  as  an  incident  to  the  power  of 
sale.  Id.  Lawrence  Gas  Co.  v.  Hawkey e  Oil  Co.,  165  N.  W.  445, 
—  Iowa  Sup.  — . 

(g)  A  broker  authorized  to  sell,  partly  for  cash  and  partly 
on  time,  may  determine  the  amount  of  the  cash  payment.  Tay- 
lor v.  Cox  (Tex.  Sup.  '87),  7  S.  W.  69. 

(h)  The  word  "sell"  in  a  power  of  attorney  authorizing 
a  party  to  sell  or  lease  any  and  all  real  estate,  etc.,  gives 
ample  power  to  complete  a  sale  by  making  a  deed  of  convey- 
ance. Hemstreet  v.  Burdick,  90  111.  444.  Compare  Bacon  v. 
Davis  (Cal.  App.  '08),  98  P.  71. 

(i)  A  power  of  attorney  to  sell  one-half  of  a  tract  of  land 
imposes  discretion  to  determine  which  half.  Alemany  v.  Daly, 
36  Cal.  90. 

0')  A  power  to  do  all  things  concerning  the  grantor's  real 
and  personal  estate,  gives  power  to  make  leases,  with  privilege 
of  purchase.  De  Rutte  v.  Muldrew,  16  Cal.  505. 

(k)  A  power  of  attorney  to  sell,  without  restrictions,  au- 
thorizes a  sale  of  real  estate,  with  covenants  of  general  war- 
ranty. Schultz  v.  Griffin,  121  N.  Y.  294,  24  N.  E.  480 ;  Jasper 
v.  Wilson  (N.  M.  Sup.  '08),  94  P.  951.  But  see  Sec.  418. 

(0  Under  a  general  power  to  sell  property  the  agent  may 
bind  his  principal  by  a  contract  of  sale.  Haydock  v.  Stowe, 
40  N.  Y.  363.  Compare  Weatherhead  v.  Ettinger,  78  0.  S.  104. 

(m)  In  the  absence  of  an  express  agreement  on  the  subject, 


312  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

an  agent  employed  to  sell  land  is  entitled  to  commissions  on 
making  a  sale.  Harrison  v.  Long,  4  Desau.  (S.  D.)  110. 

(n)  Where  defendant  in  employing  a  broker  to  sell  land 
did  not  purport  to  bind  himself  individually,  but  to  bind  a 
corporation  of  which  he  was  president,  in  an  action  on  the 
contract,  he  can  not  be  held  individually  liable  for  the  com- 
missions, but  may  be  held  for  breach  of  an  implied  warranty 
of  authority  to  the  extent  of  the  damages  resulting  from  the 
misrepresentation.  Groeltz  v.  Armstrong,  125  Iowa,  39,  99  N. 
W.  128 ;  Hochbaum  v.  Potter,  101  K  T.  Sup.  531 ;  Hallheimer  v. 
Eice,  169  N.  Y.  Sup.  1002. 

(o)  Express  authority  of  a  village  to  borrow  money  and  issue 
bonds  therefor,  includes  authority  to  employ  a  person  to  procure 
a  purchaser  for  the  bonds,  whether  he  be  a  broker  or  not.  Arm- 
strong v.  Village  of  Ft.  Edwards,  159  N.  Y.  315,  53  N".  E.  1116. 

(p)  The  cashier  of  a  bank  having  implied  authority  as  its 
executive  officer  to  contract  for  the  disposal  of  lands  acquired 
by  the  bank  in  the  collection  of  its  credits,  will  bind  the  bank 
by  his  contract  to  pay  commissions  for  the  disposal  of  lands 
placed  in  the  hands  of  a  broker,  but  which,  through  mistake 
in  identity,  the  bank  does  not  own.  Arnold  v.  Nat.  Bk.  of 
Waupaca,  126  Wis.  362,  105  N.  W.  828,  3  L.  R.  A.  (N.  S.)  580. 

Sec.  329.    Joint  owner  condoning  fraud  liable  for  benefits 
received. 

A  joint  owner  of  real  estate  who  consents  to  a  listing  there* 
of  by  his  co-owner  with  real  estate  agents  for  sale,  receives 
part  of  the  consideration,  and  does  not  repudiate  the  sale  made 
by  the  agents,  after  discovery  that  they  were  guilty  of  fraud, 
is  estopped  to  deny  connection  with  the  fraud,  but  will  be  held 
liable  only  to  the  extent  of  the  benefit  actually  received.  Alger 
v.  Anderson,  78  Fed.  729.  See  also  Sec.  856. 

Sec.  329a.     Purchaser  of  land  joining  therein  with  seller's 
agent  liable  to  account  for  profits  made. 

One  who  purchases  land  in  behalf  of  himself  and  seller's  agents, 
with  knowledge  that  the  agents  were  concealing  their  interest 
from  the  seller;  held,  liable  to  account  for  the  profits  to  him. 
Fred  Brown  &  Co.  v.  Cash,  145  N.  W.  80,  165  Iowa,  221. 


PRINCIPAL  AND  AGENT.  313 

Sec.  330.    An  agent  to  sell  has  no  authority  to  grant  a  license 

to  cut  timber. 

An  agent  has  no  authority  to  license  one  to  cut  timber  by 
virtue  of  his  authority  to  bargain  and  sell  land.  Hubbard  v. 
Elmer,  1  Wend.  (N.  Y.)  446.  See  references  under  Sec.  307. 

Sec.  331.    What  a  principal  must  do  to  escape  liability  to  the 

broker  for  commissions. 

A  principal  who  obtains  knowledge  from  his  broker  that  an 
intending  purchaser  procured  by  the  broker  is  the  person  of 
whom  he  had  learned  from  another  source  as  a  possible  pur- 
chaser, owes  to  the  broker  the  duty  of  either  terminating  the 
agency  or  notifying  him  that  he  intends  personally  to  conduct 
future  negotiations,  and  on  his  failure  to  do  so,  the  broker  is 
entitled  to  commissions,  although  the  sale  is  completed  by  the 
owner  himself.  Carroll  v.  Pettit,  22  N.  Y.  S.  250,  67  Hun,  418. 

Sec.  332.    A  power  of  attorney  confirming  all  sales  and  leases 

confers  power  to  sell. 

A  power  of  attorney  confirming  all  sales,  leases  and  con- 
tracts of  every  description,  confers  a  power  to  sell  land.  Sulli- 
van v.  Davis,  4  Cal.  291. 

Sec.  333.    Power  to  sell  any  of  constituent's  land  authorizes 

the  sale  of  that  acquired  afterwards. 

A  power  to  sell  any  of  the  constituent's  real  estate,  author- 
izes the  attorney  to  sell  real  estate  which  the  constituent  ac- 
quires after  the  execution  of  such  power.  Fay  v.  Winchester, 
4  Mete.  (Mass.)  513;  Burkey  v.  Judd,  22  Minn.  287. 

Sec.  334.    Power  to  sell  land  not  previously  conveyed,  author- 
izes sale  of  tract  not  conveyed. 

Under  a  power  to  sell  all  the  land  of  the  principal  which 
the  latter  has  not  previously  conveyed,  the  attorney  is  author- 
ized to  sell  land  that  his  principal  had  sold  but  not  conveyed. 
Mitchell  v.  Maupin,  3  T.  B.  Mon.  (Ky.)  185. 

Sec.  335.    Power  to  sell  land,  gave  authority  to  sell  on  credit, 

to  receive  payments,  etc. 

Where  a  power  of  attorney  authorized  an  agent  to  sell  "cer- 
tain lands,"  or  any  part  or  parcel  thereof,  for  such  sum  or 


314  AMEBICAN  LAW  EEAL  ESTATE  AGENCY. 

price,  or  on  such  terms,  as  to  him  shall  seem  meet,  and  for 
me  and  in  my  name  to  make,"  etc.,  "deeds  for  the  same,  either 
with  or  without  covenants  of  warranty,"  it  was  held  that  the 
agent  had  authority  to  receive  payments,  and  a  payment  to 
him  was  a  good  payment  to  the  principal;  if  circumstances 
rendered  it  favorable  for  the  interest  of  his  principal,  he  might 
include  other  valuable  considerations  besides  money  in  the  con- 
sideration, and  might  sell  an  undivided  interest  in  the  prop- 
erty. Carson  v.  Smith,  5  Minn.  78;  Babson  v.  Cox,  32  App. 
D.  C.  542.  Compare  Sec.  53. 

Sec.  336.    Power  to  sell  land  for  settlement,  not  violated  if 
shown  to  have  been  bought  on  speculation. 

A  power  of  attorney  to  sell  certain  lands  "for  the  purpose 
of  making  actual  settlement  thereof,  to  sign,  seal  and  deliver 
sufficient  deeds,"  etc.,  leaves  it  to  the  judgment  of  the  attor- 
ney to  determine  whether  the  purchasers  buy  for  the  purpose 
specified  in  the  power,  and  if  there  is  no  evidence  of  fraud  on 
the  part  of  the  purchaser  or  attorney,  the  conveyance  under 
the  power  will  be  valid,  although  it  should  afterward  appear 
that  the  land  was  purchased,  not  for  the  purpose  of  settlement 
but  on  speculation.  Spofford  v.  Hobbs,  29  Me.  148. 

Sec.  337.    Power  to  sell  land  does  not  include  power  to  lease 

or  exchange  it. 

A  power  to  sell  land  does  not  include  power  to  lease  or 
exchange  it.  Trudo  v.  Anderson,  10  Mich.  357;  Lampkin  v. 
Wilson,  5  Heisk.  (Tenn.)  555;  Reese  v.  Medlock,  27  Texas, 
120.  See  references  under  Sec.  307. 

Sec.  337a.    Authority  of  agent  construed  to  authorize  contract- 
ing to  sell,  but  not  to  convey  the  real  estate. 
A  having  possession  of  certain  property  of  B,  under  a  pow- 
er of  attorney  to  sell  the  same  and  execute  the  proper  in- 
struments of  transfer,  afterward  gave  the  charge  of  the  same, 
with  deeds  and  papers  in  his  possession,  to  C.     A  thereupon 
wrote  to  C:  "I  wish  you  to  manage    (my  property)    as  you 
would  if  it  were  your  own,  and  if  a  good  opportunity  offers 
to  sell  everything  I  have,  I  would  be  glad  to  sell.    It  may  be 


PBINCIPAL  AND  AGENT.  315 

parties  will  come  into  San  Antonio  who  will  be  glad  to  pur- 
chase my  gas  stock  and  real  estate."  Held,  that  C  was  there- 
by authorized  to  contract  for  the  sale  of  the  real  estate,  but 
not  to  convey  it.  Lyon  v.  Pollock,  99  U.  S.  668. 

Sec.  337b.    Power  to  sell  does  not  include  power  to  give  an 

option. 

A  written  power  to  sell  land  does  not  include  power  to  give 
an  option,  unless  so  expressed.  Tibbs  v.  Zirkle,  55  "W.  Va. 
49,  46  S.  E.  701,  104  Am.  St.  E.  977;  Swift  v.  Erwin,  148  S.  W. 
267,  104  Ark.  459,  Ann.  Gas.  1914  C,  363.  See  references  under 
Sec.  307. 

Sec.  337c.    Broker  to  procure  loan  without  authority  to  trans- 
fer principal's  note  and  mortgage. 

Application  to  a  mortgage  company  for  a  loan,  stating  that  the 
broker  was  the  agent  of  the  applicant  to  procure  a  loan  either 
from  the  company  or  from  any  other  person  upon  the  same  terms, 
even  if  creating  an  agency,  did  not  authorize  the  agent  to  procure 
the  money  by  transferring  the  note  and  mortgage.  Porter  v. 
Wold,  127  P.  432,  34  Okl.  253. 

Sec.  338.    Agent  buying  principal's  share  of  land  warrants 

for  less  than,  liable  for  full  value. 

Where  an  agent  received  land  warrants  to  locate  on  shares 
and  to  sell  the  land,  and  bought  up  his  principal's  share  of 
the  land  for  less  than  its  value,  without  informing  him  of  the 
price  for  which  a  part  of  the  land  had  been  sold,  it  was  held 
that  he  was  accountable  for  the  full  value  at  the  time  he  sold 
it.  Taylor  v.  Knox,  1  Dana  (Ky.)  391.  See  also  Sec.  323. 

Sec.  339.    Authority  to  locate  and  survey  land  confers  no 

power  to  sell. 

An  authority  to  locate  and  survey  land  confers  no  power 
to  sell.  Moore  v.  Lockett,  2  Bibb.  (Ky.)  67.  See  references 
under  Sec.  307. 

Sec.  340.    Authority  to  sell  in  lots,  conferred  none  to  sell 

otherwise. 

Where  an  owner  of  land,  a  part  of  which  was  surveyed  in 
lots,  gave  his  agent  a  power  of  attorney  to  convey  the  same 


316  AMEBICAN  LAW  EEAL  ESTATE  AGENCY. 

"in  lots  as  surveyed  by  B",  a  conveyance  by  the  agent  to  G 
of  a  portion  of  the  land  which  had  not  been  surveyed  was 
held  invalid  as  in  excess  of  the  authority  under  said  power. 
Rice  v.  Tavernler,  8  Minn.  248.  See  also  Sec.  307c,  and  ref- 
erence under  Sec.  307. 

Sec.  341.    Broker  not  liable  for  mutual  mistake  that  he  had 

authority  to  make  a  contract  of  sale. 

A  real  estate  broker  who  represents  that  he  has  authority 
to  sell  certain  land  is  not  liable  to  a  customer  for  the  conse- 
quences of  their  mutual  mistake  of  law  in  thinking  that  such 
authority  carried  with  it  the  right  to  make  a  contract  of  sale. 
McReavy  v.  Eshelman,  4  Wash.  757,  31  P.  35. 

Sec.  341a.    Broker  entitled  to  commission  for  land  erroneously 
sold  by  him  through  mistake  of  owner. 

The  owner  of  two  parcels  of  land  listed  them  for  sale  with  a 
real  estate  broker.  After  some  months  the  broker  wrote  the 
owner,  referring  to  one  tract,  while  the  owner  had,  in  fact,  sold 
this  tract  some  time  before,  but  did  not  notice  that  the  descrip- 
tion referred  to  it,  and  allowed  the  broker  to  secure  a  purchaser; 
held,  that  his  mistake  was  not  such  a  mistake  as  would  prevent 
the  broker  from  recovering  his  stipulated  commission.  Luce  v. 
Ash,  132  N.  W.  708,  28  S.  D.  109. 

Sec.  341b.    Broker  not  liable  for  acts  in  representative  capac- 
ity to  third  parties. 

A  broker  having  contracted  to  obtain  from  his  principal  $150, 
as  consideration  for  plaintiffs  release  of  possession  of  land  sold, 
the  broker  acted  in  a  representative  capacity  only,  and  was  not 
personally  liable  therefor.  Harral  v.  Bridges,  162  S.  W.  1001,  — 
Tex.  Civ.  App.  — . 

Sec.  342.    Agent  to  sell  land  has  no  right  to  receive  anything 
but  money  in  payment  for  principal. 

An  agent  for  the  sale  of  land  has  no  right  to  accept  anything 
but  money  for  his  principal.  Bevis  v.  Heflin,  63  Ind.  129 ;  Mann 
v.  Robinson,  19  W.  Va.  49.  See  reference  under  Sec.  307. 


PRINCIPAL  AND  AGENT.  317 

Sec.  343.    Broker  has  no  right  to  receive  Mexican  money  for 

earnest  money. 

A  real  estate  agent  who  is  authorized  to  accept  a  certain  sum 
as  earnest  money  is  not  thereby  given  power  to  accept  Mexican 
money.  Edwards  v.  Davidson  (Tex.  Civ.  App.  '04),  79  S.  W. 
48.  See  references  under  Sec.  307. 

Sec.  344.  Broker  given  minimum  price,  all  over  to  be  Ms  com- 
pensation for  selling,  need  not  tell  principal  what  land 
sold  for. 

The  owner  of  land  agreed  to  pay  a  broker  all  that  he  might 
obtain  for  the  land  above  a  minimum  price  per  acre  as  com- 
pensation, and  a  fixed  sum  in  addition;  the  broker  sold  the 
land,  but  refused  to  state  for  how  much,  or  state  that  he  had 
sold  it  at  the  minimum  price.  Held,  that  he  was  not  deprived 
of  his  right  to  compensation.  Fulton  v.  Waiters,  216  Pa.  56, 
64  A.  860. 

Sec.  345.  Agent  knowing  of  defect  in  principal's  title  can  not 
himself  acquire  title. 

If  an  agent  discovers  a  defect  in  the  title  of  his  principal  to 
land  he  can  not  misuse  it  to  acquire  title  for  himself,  and,  if 
he  does,  will  be  held  as  a  trustee  of  the  title  for  his  principal. 
Ringo  v.  Binns,  10  Pet.  (U.  S.)  269;  Gardner  v.  Ogden,  22 
N.  Y.  327 ;  McMahon  v.  McGrow,  26  Wis.  614 ;  Rogers  v.  Lock- 
ett,  28  Ark.  290.  See  also  Sec.  294. 

Sec.  346.  Broker  guilty  of  negligence  to  injury  of  principal, 
barred  commissions. 

Although  the  broker  finds  a  purchaser  who  is  willing  to  buy 
on  the  terms  imposed  by  the  principal,  yet  he  is  not  entitled 
to  a  commission  if  the  trade  fails  through  his  negligence,  and 
by  the  insertion  of  a  condition  which  the  agent  employing  him 
had  no  authority  to  direct.  Fisher  v.  Dynes,  62  Ind.  348.  And 
this  applies  as  well  in  the  case  of  an  exchange  lost  thereby  to 
the  principal.  Stuart  v.  Stumph,  126  Ind.  580,  26  N.  E.  553; 
HarJcness  v.  Briscoe,  47  Mo.  App.  196 ;  Smye  v.  Groesbeck 
(Tex.  Civ.  App.  '02),  73  S.  W.  972.  See  also  Sees.  325,  349. 


318  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  347.    Owners  liable  for  negligence  to  prospective  tenants 

injured  while  examining  building. 

Where  the  owner  of  a  building  employs  brokers  to  obtain 
tenants  and  authorizes  the  broker  to  conduct  their  customers 
into  the  building,  he  is  liable  for  injuries  sustained  by  a  cus- 
tomer while  examining  the  building  in  company  with  the 
brokers  and  due  to  their  negligence.  Boyd  v.  U.  8.  Mtge.,  etc., 
Co.,  88  N.  Y.  S.  289,  94  App.  Div.  413. 

Sec.  347a.     Principal,  when  liable  for  negligent  or  tortious 
acts  of  insane  agent. 

One  who  knowingly  employs  an  insane  agent  should  be  held 
liable  for  negligent  or  tortious  acts  committed  by  such  agent 
within  the  scope  of  his  employment.  Christian  v.  Columbus,  etc. 
B.  Co.,  79  Ga.  460;  4  A.  &  E.  Anno.  Cases,  135. 

Sec.  348.    When  brokerage  contract  signed  without  reading 
will  not  be  set  aside  for  fraud. 

One  who  negligently  signs  a  brokerage  contract  without  read- 
ing it,  relying  on  statements  of  the  brokers  as  to  its  contents, 
is  not  entitled  to  have  it  set  aside  for  fraud,  when  the  signer 
had  no  right  to  rely  on  their  statements.  Kimmell  v.  Skelly, 
130  Cal.  555,  62  P.  1067.  Compare  Sec.  52. 

Sec.  349.    A  broker  whose  principal  -suffers  loss  through  his 
negligence  is  liable  to  him  therefor. 

A  money  lender  to  whom  a  sum  of  money  is  given  to  invest 
is  bound  to  exercise  reasonable  skill  and  prudence;  by  his 
business  he  holds  himself  out  as  possessing  competent  skill  to 
determine  what  reasonable  care  and  prudence  requires;  if  he 
fails  to  exercise  these,  and  through  his  negligence  loss  occurs, 
he  is  liable  to  make  it  good.  McFarland  v.  McClees,  5  A.  50, 
1  Pa.  Cases  504 ;  Stewart  v.  Muse,  62  Ind.  385 ;  Whitney  v.  Mar- 
tine,  6  Abb.  (N.  Y.)  N.  C.  72;  Hindricks  v.  Brady  (S.  D.  Sup. 
'06 ),  108  N.  W.  332,  121  N.  W.  777;  Harlow  v.  Bartlett,  170 
Mass.  584,  49  N.  E.  1014;  Hindricks  v.  Brady  (S.  D.  Sup.  '09), 
121  N.  W.  777.  See  also  Sees.  325,  346,  260,  261,  271.  TowsU 
v.  Griffiths,  103  A.  192,  —  N.  J.  Ct.  of  Err.  and  App.  — . 


PRINCIPAL  AND  AGENT.  319 

Sec.  350.   Broker  departing  from  his  instructions  liable  for  loss 

arising  therefrom. 

A  broker  who  has  instructions  to  buy  for  his  principal  mort- 
gages, or  other  first-class  discount  paper,  who  violates  them  and 
invests  the  money  on  his  own  judgment,  is  responsible  for  the 
consequent  loss  to  his  principal,  though  Civil  Code,  Art.  2987, 
declares  that  brokers  shall  not  be  responsible  "for  events  which 
arise  in  the  affairs  in  which  they  are  employed."  Soudieu  v. 
Faures,  12  La.  Ann.  746.  See  also  Sec.  229,  230. 

Sec.  351.    Brokers  not  liable  for  loss  on  forged  note,  where 
they  acted  in  good  faith  and  disclosed  their  principal. 

Note  brokers  are  not  personally  liable  for  a  loss  on  a  forged 
note  sold  by  them,  when  they  advised  the  vendee  at  the  sale 
that  they  were  acting  as  agents  and  disclosed  their  principal. 
Bailey  v.  Galbreath,  100  Tenn.  599,  47  S.  W.  84.  Compare 
Sec.  574.  •  See  also  Sec.  280. 

Sec.  352.    Broker  taking  a  note,  payable  at  his  office,  not  there- 
by authorized  to  collect. 

A  broker  who  negotiates  a  loan  and  receives  his  commission 
from  the  borrower,  taking  a  note  payable  at  his  office  to  the 
lender,  is  not  authorized  to  receive  payments  on  such  note. 
Englert  v.  White,  92  Iowa,  97,  60  N.  W.  224.  Compare  Sees. 
255,  257,  356. 

Sec.  353.    Where  broker  has  note  payable  at  his  office  the 

maker  is  warranted  in  paying  him. 

Where  a  note  is  -payable  at  the  office  of  a  broker,  it  is  the 
duty  of  the  maker,  in  the  absence  of  directions  from  the  holder 
to  the  contrary,  to  tender  payment  there,  and  finding  the  note 
in  the  broker's  possession,  the  maker  has  a  right  to  assume  that 
the  broker  has  authority  to  receive  payment  thereof.  Fifth 
Con.  Church  of  Wash.  v.  Bright,  28  App.  D.  C.  229.  See  also 
Sec.  357. 

Sec.  354.    Agent  to  receive  principal  and  interest  not  author- 
ized to  receive  payment  before  due. 

An  agent  merely  to  receive  the  interest  and  principal  of  a 
note  is  not  authorized  to  take  the  payment  of  the  principal 


320  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

prior  to  the  same  becoming  due.     Williams  v.  Pelley,  9§  111. 
App.  346.     See  references  under  Sec.  307. 

Sec.  355.    Agent  to  collect  the  interest  not  authorized  to  collect 

the  principal. 

In  a  suit  to  cancel  a  deed  of  trust  on  the  ground  of  payment 
to  the  lender's  broker,  the  fact  that  the  broker  negotiated  the 
loan  and  collected  interest  on  the  loan  is  insufficient  to  make 
the  broker  the  agent  to  collect  the  principal,  where  the  lender 
was  in  possession  of  the  security.  Heffereman  v.  Boteler,  87 
Mo.  App.  316.  Compare  Sec.  353,  357,  also  references  under 
Sec.  307. 

Sec.  356.  Agent  who  transacted  all  the  business  of  the  prin- 
cipal held  agent  to  collect  payment  of  note. 
Where  an  agent  transacted  all  the  business  with  reference  to 
the  collection  of  the  principal  and  interest  of  debts  secured  by 
note  and  mortgage,  and  acted  as  the  agent  of  the  investor  in 
the  care  and  protection  of  the  security  and  to  deal  with  the 
security  as  the  agent  deemed  best,  with  the  full  knowledge  of 
the  principal,  payment  of  a  note  to  such  agent  was  payment 
to  the  principal.  Pockin  v.  Knoebel,  63  Neb.  768,  89  N.  W. 
264.  Compare  Sec.  255,  352. 

Sec.  357.    Debtor,  before  payment,  should  see  that  agent  has 
the  security. 

If  a  debtor  owing  money  on  a  written  security,  pays  or  settles 
with  another  as  agent,  it  is  his  duty,  at  his  peril,  to  see  that 
the  person  thus  paid  or  settled  with  is  in  possession  of  the 
security.  Corbett  v.  Weller,  27  Wash.  242,  67  P.  567.  See 
also  Sec.  353. 

Sec.  358.    Unless  broker  proves  he  could  have  made  a  sale  on 

revocation  entitled  to  recover  only  nominal  damages. 
In  an  action  for  damages  for  revocation  of  authority  to  sell 
land,  nothing  more  than  nominal  damages  can  be  recovered 
where  the  agent  fails  to  show  that  he  could  have  made  a  sale 
on  the  principal's  terms.  Milligan  v.  Owen,  123  Iowa  285,  98 
N.  W.  792.  Contra,  Sec.  300. 


PRINCIPAL  AND  AGENT.  321 

Sec.  359.    Notice  to  agent  to  bind  the  principal  must  be  given 

while  acting  for  the  principal. 

Notice  to  an  agent  to  bind  the  principal  must  be  given  to 
the  agent  while  engaged  in  the  business  and  negotiations  of 
the  principal,  or  when  it  would  be  a  breach  of  trust  in  the 
agent  not  to  communicate  the  knowledge  to  his  principal.  Pep- 
per v.  George,  51  Ala.  190;  Pringle  v.  Dunn,  37  Wis.  449. 

Sec.  360.    Broker,  on  finding  customer  to  buy,  to  be  entitled 
to  commissions  must  give  principal  notice. 

Although  the  broker  finds  a  customer  before  the  principal 
sells  the  property,  he  is  not  entitled  to  a  commission  if  he 
delays  to  notify  the  owner  until  after  a  sale  is  made  by  the 
latter.  Bears  v.  Hyland,  65  Minn.  150,  67  N.  W.  1148 ;  Barnett 
v.  Gluting,  3  Ind.  App.  415,  29  N.  E.  154,  927 ;  Burnett  v.  Ed- 
ling,  19  Tex.  Civ.  App.  711,  48  S.  W.  775.  See  also  Sees.  489, 
558.  Compare  Sec.  871. 

Sec.  361.    Notice  waived  where  principal  instructs  broker  to 
send  prospective  buyers  to  him. 

Where  a  real  estate  agent  is  instructed  by  the  principal  to 
send  persons  inquiring  about  the  property  to  the  latter,  the 
agent  is  not  required  to  notify  the  principal  of  the  fact  that  he 
has  sent  persons  to  him,  in  order  to  recover  commissions  on  a  sale 
to  any  of  such  persons.  Clifford  v.  Meyer,  6  Ind.  App.  633,  33 
N.  E.  127,  34  N".  E.  23.  Compare  Sees.  359,  360. 

Sec.  362.    Principal  can  not  reject  offer  through  broker,  and 
then  sell  and  escape  liability  for  commissions. 

Where  a  real  estate  agent  employed  to  sell  lands  introduces  the 
owner  to  a  purchaser  and  negotiations  are  commenced  through 
such  introduction,  the  agent  is  entitled  to  his  commissions  though 
a  sale  is  not  effected  at  first,  and  the  owner  declares  the  transac- 
tion off,  but  afterward  makes  the  sale  himself,  without  the  aid  of 
the  agent.  Scott  v.  Patterson,  53  Ark.  49,  13  S.  W.  419 ;  Day  v. 
Porter,  161  111.  235,  43  N.  E.  1073 ;  Somers  v.  Wescott,  66  N.  J. 
L.  551,  49  A.  462.  See  also  Sees.  317,  374a. 


322  AMEEICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  362a.    Oral  agreement  to  act  as  sales  manager  upheld. 

An  oral  agreement  employing  plaintiff  to  act  as  defendant's 
sales  manager,  receiving  5%  on  all  sales  made  by  defendant's 
sales  force  or  by  plaintiff;  held,  not  void  because  not  in  writing, 
under  L.  0.  L.,  Sec.  808,  subd.  8.  Sherman  v.  Clear  View  Or- 
chard Co.,  145  P.  264,  74  Or.  240. 

Sec.  363.    Agent  authorized  to  make  a  written  can  not  make 
an  oral  contract. 

An  agent  must  closely  follow  the  instructions  of  his  prin- 
cipal; therefore,  an  agent  authorized  to  enter  into  a  "written 
contract"  for  the  sale  of  land,  can  not  enter  into  a  verbal 
agreement  for  its  sale.  Berning  v.  Pierce,  5  Watts  &  S.  (Pa.) 
548.  See  references  under  Sec.  307. 

Sec.  363a.    Broker  not  entitled  to  commissions  on  contract 

not  in  conformity  with  authorization. 

Under  a  contract  providing  that  a  broker  on  securing  a  pur- 
chaser shall  receive  a  commission  "when  the  contract  for  the 
sale  is  signed,"  the  broker  is  not  entitled  to  the  commission 
on  securing  a  parol  offer  which  is  accepted  by  the  principal, 
where  no  contract  of  sale  is  signed,  and  the  person  making 
the  offer  fails  to  complete  the  purchase.  Schlansky  v.  Hillman, 
111  N.  Y.  S.  696.  See  See.  556. 

Sec.  364.    Agent  acting  under  oral  authority  can  not  bind 

principal  by  written  covenants. 

An  agent  acting  under  parol  authority  can  not  bind  his 
principal  by  a  written  covenant  under  seal,  signed  with  the 
name  of  such  principal;  such  an  instrument  is  not,  in  any 
sense,  the  deed  of  the  principal,  unless  delivered  by  him.  Har- 
shaw  v.  McKesson,  65  N.  C.  688.  See  references  under  Sec.  307. 


CHAPTER  VI. 


SECTION. 

365.  Postponement    by    purchaser 

— Broker       earns      commis- 
sions. 

366.  Undisputed      possession      for 

years — Agent     authorized. 

367.  Words   "placed   in  hands   of" 

do  not  give  possession. 

367a.  The  word  "sell"  means  "to 
find  a  buyer". 

367b.  The  phrase,  "in  any  event", 
means  "whatever  may  hap- 
pen". 

368.  Agent    paying    money — Takes 

deed  to  self  absolutely. 

369.  Principal     taking     land     for 

cash  liable  to  broker. 

370.  Principal   should    pay   broker 

who    produced    purchaser. 
370a.  Landowner  not  liable  to  oth- 
ers his  agents  employ. 

371.  Pool    to    divide    commissions 

bars    recovery    by   broker. 
37 la.  Brokers  may  make  oral  con- 
tracts    between     themselves 
to  divide  commissions. 


SECTION. 

372.  Agent   to   make  repairs,   not 

permanent  improvement. 

373.  Broker    can    not   retain    com- 

missions      from       purchase 
money. 

374.  Vendor  refusing  to  sell  liable 

for  commission. 

374a.  Owner  can  not,  by  refusing 
to  convey,  avoid  liability 
to  broker  for  earned  com- 
missions. 

375.  When  refusing  to  sell  broker 

not  entitled. 

376.  Other     property     taken    does 

not  deprive  broker  of  com- 
missions. 

377.  Broker  refused  land  for  com- 

mission may  take  cash. 

378.  Originally    agreeing    to    take, 

on  refusal,  can  not  recover 
in  money. 

379.  Release    by    one    broker    left 

other  entitled  to  half  of  re- 
maining land. 

380.  Release    of    vendee    does    not 

deprive  broker  of  fee. 


Sec.  365.    Postponement  by  prospective  purchaser,  broker  not 
defeated  of  commissions  by  sale  through  another. 

Where  a  broker  put  his  principal  in  communication  with  a 
prospective  purchaser  for  his  lot,  and  the  prospective  pur- 
chaser postponed  the  proposition  for  the  time  being,  but  after- 
ward went  to  another  real  estate  agent,  who  was  known  to 
have  authority  to  sell  the  lot,  and  made  the  purchase  from  him 
at  a  slightly  reduced  price,  it  was  held  that  the  first  agent 
having  set  on  foot  inquiries  and  negotiations  that  culminated 

323 


324  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

in  the  sale  was  entitled  to  the  commission  therefor.  Cunliff  v. 
Hausman,  97  Mo.  App.  467,  71  S.  W.  368.  Compare  Sec.  370. 

Sec.  366.    Possession   undisputed  for  years  raises  presump- 
tion of  authority  of  agent  to  convey. 

After  many  years  undisputed  possession  of  real  or  personal 
property  under  a  conveyance  executed  by  a  person  as  agent, 
his  authority  will  be  presumed.  Stockbridge  v.  West  Stock- 
bridge,  14  Mass.  257,  261. 

Sec.  367.    Words  "placed  in  the  hands  of"  do  not  give  agent 
the  right  to  the  possession  of  the  property. 

The  expression  "placed  in  the  hands  of to  be  sold" 

used  in  a  contract  by  which  one  person  agrees  to  sell  land 
for  another  for  a  commission,  does  not  confer  on  the  agent  a 
right  to  the  possession  of  the  real  estate;  it  is  a  familiar  form 
of  expression  used  to  indicate  the  appointment  of  an  agent  to 
sell  property.  Reeder  v.  Butler,  19  Pa.  Super.  Ct.  604. 

Sec.  367a.    The  word  "sell"  held  to  mean  "to  find  a  buyer". 

As  used  in  a  real  estate  broker's  employment  contract  granting 
an  "exclusive  option  to  buy  or  sell"  certain  property  within  a 
stated  time,  the  word  "sell"  means  to  find  a  purchaser  for.  Flem- 
ing v.  Hattan,  142  P.  971,  92  Kan.  948. 

Sec.  367b.    The  phrase  "in  any  event"  held  to  mean  "what- 
ever may  happen". 

Where  a  written  contract  for  the  sale  of  real  property  by  a 
broker  provided  that  it  should  be  maintained  "in  any  event" 
until  a  certain  date,  the  words  "in  any  event"  mean  only  "what- 
ever may  happen,"  and  did  not  extend  the  operation  of  the  con- 
tract beyond  the  date  fixed.  Elsea  v.  Fassler,  154  P.  1067,  29 
Cal.  App.  187. 

Sec.  368.    Agent  buying  for  principal,  paying  purchase  money 
and  taking  deed  to  himself,  holds  absolutely. 

Where  a  man  employs  an  agent  by  parol  to  buy  an  estate, 
and  the  agent  accordingly  buys  it,  and  no  part  of  the  considera- 
tion is  paid  by  the  principal  and  there  is  no  written  agreement 


PBINCIPAL  AND  AGENT.  325 

between  the  parties,  the  principal  can  not  compel  the  agent  to 
convey  the  estate  to  him.  Dorsey  v.  Clarke,  4  Har.  &  J.  (Md.), 
551;  Pinnock  v.  Clough,  16  Vt.  500.  Compare  Sees.  462,  595. 

Sec.  369.    Principal  accepting  property  in  lieu  of  cash,  liable 
to  broker  for  commissions. 

A  broker  is  entitled  to  his  commissions  for  effecting  a  sale 
where  the  principal  without  oh.iecting  accepts  property  in  lieu 
of  cash.  Clark  v.  Allen,  125  Cal.  276,  57  P.  985 ;  Eabl  v.  John- 
son, 28  Ind.  App.  665,  63  N.  E.  580 ;  Grether  v.  McCormick,  79 
Mo.  App.  325;  Kennerly  v.  Somerville,  68  Mo.  App.  222;  S.  E. 
Crowley  Co.  v.  Myers,  69  N.  J.  L.  245,  55  A.  305 ;  Showaker  v. 
Kelly,  21  Pa.  Super.  Ct.  390;  Thornton  v.  Moody  (Tex.  Civ. 
App.  93),  24  S.  W.  331.  See  also  Sees.  275,  376. 

Sec.  370.    Principal  should  pay  the  broker  who  procured  the 

purchaser. 

Where  real  estate  is  placed  for  sale  in  the  hands  of  two 
independent  brokers  under  an  arrangement  with  the  owner 
assented  to  by  both  of  them  that  the  commission  shall  be  paid  to 
the  one  selling  the  property,  it  is  the  duty  of  the  owner  to  pay 
the  commission  to  the  one  actually  producing  a  purchaser  and 
consummating  a  sale.  Daniels  v.  Columbia  Heights  Land  Co., 
9  App.  Cas.  (D.  C.)  483.  See  Winans  v.  Jacques,  10  Daly  (N. 
Y.)  487.  Compare  Sec.  365. 

Sec.  370a.    Landowner  not  liable  to  other  agents  whom  his 
agent  may  employ. 

A  landowner  may  select  his  own  agent  for  the  sale  of  his 
land  without  becoming  personally  responsible  to  other  agents 
whom  the  first  agent  may  employ  to  assist  him  in  carrying  out 
the  undertaking.  Lanhart  v.  Bean,  161  N.  W.  464,  —  Iowa 
Sup.  — . 

Sec.  371.    Agreement  between  brokers  to  divide  commissions 
bars  recovery  thereof. 

Where  defendant  employed  plaintiff  as  his  agent  to  effect  an 
exchange  of  defendant's  property,  plaintiff  being  given  discre- 
tion as  to  the  valuation  to  be  placed  on  the  property,  and 


326  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

plaintiff  and  the  agent  of  the  owner  with  whom  the  exchange 
was  made  agreed  to  pool  their  commissions  and  divide  the  pool, 
the  commissions  being  based  on  the  valuation,  plaintiff  was  not 
entitled  to  recover  commissions.  Quinn  v.  Burton,  195  Mass. 
277,  81  N.  E.  257;  Levy  v.  Spencer,  18  Colo.  532,  23  P.  415; 
Norman  v.  Roseman,  59  Mo.  App.  682;  Armstrong  v.  O'Brien, 
83  Tex.  635,  19  S.  W.  268;  Shepard  v.  Hill,  6  Wash.  605,  34  P. 
159;  Carder  v.  O'Neill,  207  Mo.  632,  106  S.  W.  10;  Plotner  v. 
Chillian  (Okla.  Sup.  '08),  95  P.  775;  Peaden  v.  Marler,  189  P. 
741,  —  Okl.  Sup.  — ;  Whittle  v.  Klipper,  165  N.  W.  425,  — 
Iowa  Sup.  — .  If  the  principals  have  knowledge  of  the  pool  and 
do  not  object  thereto,  the  broker  is  not  barred  recovery  of  com- 
missions. Kurinsky  v.  Lynch  (Mass.  '09),  87  N.  E.  70;  Dearing 
v.  Sears,  3  N".  Y.  S.  31.  Compare  Alvard  v.  Cook,  174  Mass.  120, 
54  N.  E.  499. 

Sec.  371a.    Brokers  may  make  oral  contracts  between  them- 
selves to  divide  commissions. 

Rem.  and  Bal.  Code,  Sec.  5289,  providing  that  an  agreement 
employing  a  broker  to  sell  real  estate  for  a  commission  shall  be 
void  unless  in  writing,  only  applies  to  contracts  between  a  land- 
owner and  a  broker  employed  to  sell,  so  that  brokers  may  make 
a  valid  oral  contract  between  themselves  to  divide  commissions 
from  the  sale  of  land.  James  v.  Kehoe,  112  P.  19,  65  Wash. 
281;  Leigh  v.  Yancey,  120  P.  512,  67  Wash.  18;  Orr  v.  Perky 
Inv.  Co.,  118  P.  19,  65  Wash.  281. 

Where  the  conditions  of  a  written  contract  for  an  exchange  of 
properties  were  not  performed,  and  the  broker,  to  induce  the 
carrying  out  of  the  contract,  orally  agreed  to  reduce  his  commis- 
sion, and  the  contract  was  performed,  the  oral  contract  as  to 
commissions  was  substantially  performed,  and  the  broker  was 
entitled  to  recover,  notwithstanding  Rem.  and  Bal.  Code,  5289. 
Leigh  v.  Yancey,  120  P.  512,  67  Wash.  18. 

Where  a  broker,  under  contract  to  procure  a  purchaser  of  real 
estate,  employed  a  third  person  to  assist  in  procuring  a  purchaser 
for  a  share  of  commissions,  and  the  third  person  showed  another 
how  he  could  make  money  by  purchasing  the  property,  and  the 
broker  sold  the  property  to  him,  the  right  of  the  third  person  to 
recover  his  share  of  the  commissions  was  established.  Casey  v. 
Richards,  101  P.  36,  10  Cal.  App.  57. 


PRINCIPAL  AND  AGENT.  387 

Sec.  372.    Authority  to  an  agent  to  make  necessary  repairs, 
does  not  extend  to  permanent  improvements. 

If  one  employed  to  manage  property  for  its  owner  is  empow- 
ered to  make  such  repairs  only  as  are  necessary  to  preserve  and 
protect  the  property  from  ordinary  wear  and  tear,  he  can  not 
charge  the  owner  with  the  expense  of  permanent  improvements, 
or  of  rebuilding  after  a  fire.  Beckman  v.  Wilson,  61  Cal.  335 ; 
Planer  v.  Equitable  L.  A.  Soc.  (N.  J.  Ch.  '97),  37  A.  668.  See 
references  under  Sec.  307. 

Sec.  373.    Broker  can  not,  unless  authorized,  retain  commis- 
sions from  purchase  money. 

Where  real  estate  was  placed  in  the  hands  of  brokers  for 
sale,  and  they  purchased  it  from  the  agent  of  the  owner  with 
power  to  sell,  such  agent  had  no  legal  right  to  retain  com- 
missions out  of  the  price  received,  in  the  absence  of  a  specific 
agreement  to  that  effect.  Knott  v.  Midkiff,  114  La.  234,  38 
S.  153.  See  also  Sec.  285,  and  references  under  Sec.  307. 

Sec.  374.  Vendor  by  refusal  to  sell,  liable  to  broker  for  com- 
mission, though  to  be  paid  by  customer, 
W.  employed  C.  &  B.  to  purchase  a  lot  for  him  upon  certain 
terms,  stipulating  that  the  compensation  of  the  latter  was  to  be 
deducted  from  the  purchase  money  going  to  the  vendor,  and 
was  in  no  event  to  be  paid  by  W.  Held,  that  W.  would  be 
liable  to  C.  &  R.  for  their  proper  fees  in  case  of  a  violation  of 
the  contract  by  W.  in  refusing  to  take  the  property.  Cavender 
v.  Waddingham,  2  Mo.  App.  551;  Bird  v.  Blackwell,  (Mo.  App. 
'09),  115  S.  W.  487.  See  also  Sees.  197,  454. 

Sec.  374a.    Owner  can  not,  by  refusing  to  convey,  avoid  lia- 
bility to  the  broker  for  earned  commissions. 

An  owner  can  not,  by  refusing  to  convey,  avoid  liability  to  the 
broker  for  services  rendered  in  procuring  a  purchaser  while  the 
contract  of  employment  was  in  force.  Johnson  v.  Huber  (Kan. 
Sup.  '09),  103  P.  99.  See  also  Sec.  362.  Compare  Sec.  375. 

It  is  sufficient  to  entitle  a  broker  to  his  commissions  that  it 
appears  that  a  sale  was  effected  through  his  agency  in  procuring 
a  purchaser,  and  his  right  is  not  affected  by  refusal  of  the  seller 


328  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

to  perform  the  contract  made,  whether  in  good  or  bad  faith. 
Baldwin  v.  Jardine,  Mathum  &  Co.,  261  F.  861;  Newman  v. 
Lumley,  125  111.  App.  382;  Schneider  v.  Commons,  190  111.  App. 
121. 

Sec.  375.    Principal  refusing  to  sell,  broker  not  entitled  to 
commission,  in  the  absence  of  an  established  custom. 

It  is  the  custom  of  land  agents  or  brokers  in  "Wisconsin  to 
charge  and  receive  three  per  cent,  of  the  amount  of  the  pur- 
chase money.  K.  verbally  employed  P.,  a  land  broker,  to  sell 
for  him  certain  lands  at  a  fixed  price.  P.  found  a  person  who 
was  ready  and  willing  to  purchase  on  the  proposed  terms  when 
K.  refused  to  sell;  P.  then  brought  suit,  declaring  upon  a  con- 
tract or  promise  of  K.  to  pay  three  per  cent,  of  the  purchase 
money  agreeably  to  usage  in  such  cases.  But  it  was  held  that 
such  rate  of  compensation  and  such  implied  contract  depended 
upon  the  consummation  of  the  sale.  Usage  in  order  to  enter 
into  and  become  a  part  of  the  law  of  contract  or  trade  must 
be  established  so  clearly  and  explicitly,  and  be  so  notorious  that 
the  party  must  be  presumed  to  know  it  and  to  have  contracted 
with  reference  to  it.  Power  v.  Kane,  5  Wis.  265.  See  Cavender 
v.  Waddingkam,  2  Mo.  App.  551.  Compare  Sec.  374a. 

Sec.  376.    Broker  not  deprived  of  commissions  as  to  part  of 

consideration  paid  by  other  property. 

Where  a  broker  produces  an  acceptable  purchaser  in  the 
manner  and  under  the  agreement  stated,  he  will  not  be  de- 
prived of  his  commissions  because  the  principal  part  of  the 
consideration  for  the  land  by  the  buyer  is  other  real  estate 
which  he  owned.  Driesbach  v.  Rollins,  39  Kan.  268,  18  P.  187. 
See  also  Sec.  275,  369. 

Sec.  377.    Broker  agreeing  to  take  real  estate  for  compensa- 
tion, on  refusal  can  recover  in  cash. 

A  broker  who,  after  performance  of  his  contract,  agrees  to 
take  real  estate  as  compensation,  upon  the  principal's  refusal 
to  convey  the  realty,  is  entitled  to  recover  the  commission  in 
cash.  Morey  v.  Harvey,  18  Colo.  40;  31  P.  719.  Compare  Bai- 
ley v.  Gardner,  6  Abb.  N.  C.  (N.  Y.)  147.  See  also  Sec.  468. 


PRINCIPAL  AND  AGENT.  329 

Sec.  378.  Broker  originally  agreeing  to  take  realty  for  com- 
pensation, on  refusal,  can  not  recover  in  money. 
The  plaintiff,  who  was  a  real  estate  broker,  agreed  before 
certain  commissions  were  earned  by  him,  to  take  payment  of 
them  in  lots  of  land,  and  afterwards  selected  the  lots  he  would 
take;  a  deed  thereof  was  duly  tendered  and  refused.  Held, 
that  he  could  not  recover  the  commission  in  money,  on  the 
ground  that  the  agreement  to  convey  the  land  was  void.  Bailey 
v.  Gardner,  6  Abb.  N.  C.  (N.  Y.)  147.  Compare  Morey  v. 
Harvey,  18  Colo.  40,  31  P.  719. 

Sec.  379.    Release  to  owner  by  one  broker  left  the  other  enti- 
tled to  one-half  of  remaining  land. 

An  owner  employed  a  broker  to  procure  a  purchaser  for  a 
tract  of  land;  the  broker,  with  the  owner's  consent,  employed  a 
third  person  to  assist  in  procuring  a  purchaser ;  the  owner 
thereupon  executed  an  agreement  reciting  that  the  broker  and 
the  third  person  were  to  receive  any  amount  above  $17,000  for 
the  whole  tract;  a  purchaser  agreed  to  take  a  part  of  the  tract 
at  $20,000;  the  owner  paid  the  broker  his  commissions,  re- 
ceiving a  receipt  in  full.  Held,  that  the  third  person  was  en- 
titled to  the  half  of  the  land  remaining  unsold,  but  not  to  any 
part  released  to  the  owner  by  the  broker  by  his  receipt  in  full, 
and  objection  to  the  contract  sued  on,  on  the  ground  that  it 
was  within  the  statute  of  frauds,  comes  too  late  after  judgment. 
Ewart  v.  Young,  119  Mo.  App.  483,  96  S.  W.  420.  Amendment 
allowable  in  Appellate  Court.  Bausch  v.  McConnell,  13  Ohio 
Cir.  Ct.  640. 

Sec.  380.    Release  by  vendor  of  vendee  from  his  obligation 
does  not  deprive  broker  of  right  to  commissions. 

A  broker  has  earned  his  commissions  when  he  has  presented 
a  customer  whom  the  owner  accepts,  and  evidences  such  accept- 
ance by  entering  into  an  enforceable,  binding  contract;  the 
action  of  the  vendor  in  releasing  a  vendee  from  his  obligations, 
for  reasons  suiting  his  own  convenience,  can  not  affect  the 
right  of  the  broker  to  recover  his  commissions.  Packer  v. 
Sheppard,  127  111.  App.  598;  Ward  v.  Gobi,  148  Mass.  518, 
20  N".  E.  174;  Beckwifh- Anderson  Co.  v.  Allison,  147  P.  482,  26 
Cal.  App.  473;  Levy  v.  Griffith,  74  S.  613,  113  Miss.  659. 


CHAPTER  VII. 


SECTION. 

381.  Agent  to  collect  rent  not  au- 

thorized to  employ  broker 
to  sell  land. 

381a.  Agents  to  rent  and  care  for 
land  may  purchase  for 
themselves. 

382.  Broker     required     to    refund 

commissions  when  he  has 
acted  in  bad  faith. 

383.  Receipt  by  broker,  signed  by 

himself  as  agent,  binds  him 
individually. 

384.  Where  agent  gives  receipt  in 

name  of  principal,  pur- 
chaser must  look  to  latter. 

385.  Receipt  in  name  of  principal 

— Purchaser  may  recall  be- 
fore money  is  paid  to  him. 
385a.  Receipt    of    broker    for    pur- 
chase  money    bound    owner. 

386.  Creditor    authorized    to    col- 

lect rent  can  not  pay 
therefrom  his  own  debt. 

387.  Agent    to    collect    rent    must 

apply  the  same  as  directed 
by  principal. 

388.  Broker   acting  in  interest  of 

others,  not  entitled  to  share 
in  transaction  for  prin- 
cipal. 


SECTION. 

389.  Broker    purchasing    property 

not  entitled  to  commissions 

for  its  sale. 
389a.  Agent  can  not  become  buyer 

of  principal's  property. 
389b.  When   employed  to  purchase, 

agent  can  not  sell  his  own 

property  to  principal. 
389c.  Circumstances     under     which 

agent  has  right  to  purchase 

the  property  for  himself. 

390.  Broker    liable    for    fraud    of 

sub-agent. 

390a.  Sub-agent  acting  in  good 
faith  not  liable  for  mis- 
take of  his  principal. 

391.  Sub-agent  concealing  fact  de- 

prives   broker    of    right    to 
commissions. 

392.  Sub-agent  exceeding  authority 

bars  commissions. 

392a.  Broker  selling  on  terms 
varying  from  instructions. 

392b.  Broker  departing  from  in- 
structions in  making  sales. 

393.  Principal    not    liable    to   bro- 

ker's sub-agent. 

394.  Broker    not    liable    for    poor 

sale  by  sub-agent. 
394a.  When  agent  without  implied 
power  to  appoint  sub-agent. 


Sec.  381.    Agent  to  collect  rent  not  authorized  to  employ  bro- 
ker to  sell  land. 

The  issue  was,  whether  one  executing  a  contract  on  behalf 
of  a  landowner  had  authority  so  to  do,  and  it  was  shown  that 
330 


PBINCIPAL  AND  AGENT.  331 

he  was  authorized  by  one  who  was  engaged  in  renting  property 
and  collecting  rents  for  the  landowner.  Held,  that  the  relations 
between  the  rent  agent  and  the  owner  were  not  sufficient  to 
warrant  an  inference  of  authority  to  empower  the  person  execut- 
ing the  contract.  Topliff  v.  Shadwell,  64  Kan.  884,  67  P.  545 ; 
Hunn  v.  Ashton,  121  Iowa,  265,  96  N.  W.  745.  See  also  Sec. 
392  and  reference  under  Sec.  307. 

Sec.  381a.    Agents  to  rent  and  care  for  land  may  purchase1 
for  themselves. 

Agents  to  rent  and  care  for  land,  not  agents  for  the  sale  there- 
of; held,  entitled  to  negotiate  and  purchase  for  themselves, 
though  the  owner  did  not  know  that  they  were  the  real  purchasers. 
Fred  Brown  &  Go.  v.  Cash,  145  N.  W.  80,  165  Iowa,  221. 
Sec.  382.  Broker  required  to  refund  commissions  when  he  has 
acted  in  bad  faith. 

Where,  after  confirmation  of  sale,  the  owner  pays  to  the 
broker  the  commissions  agreed  on,  and  afterwards  discovers 
that  the  title  to  the  land  he  has  received  in  exchange  is  defec- 
tive, and  the  representations  made  as  to  the  situation  and 
value  are  false.  Held,  before  he  can  recover  from  such  broker 
the  commissions  so  paid  for  the  exchange,  he  must  further  show 
that  the  broker  acted  in  bad  faith,  and  concealed  from  him 
information  possessed  by  said  broker  in  regard  to  the  title, 
situation  and  value  of  the  land.  Lockwood  v.  Halsey,  41  Kan. 
166,  21  P.  98;  Volker  v.  Fisk  (N.  J.  Ch.  '09),  72  A.  1011.  See 
also  Sec.  323. 

Sec.  383.    Receipt  by  broker,  signed  by  himself  as  agent,  binds 

him  individually. 

Where  brokers,  making  a  sale,  give  the  vendee  a  receipt  for 
the  first  payment,  signed  by  themselves  as  agents,  in  which  it 
is  stated,  "it  is  agreed  that  in  case  the  title  appears  to  be  not 
good,  this  $1,000  will  be  refunded  by  us,"  they  are  personally 
liable  to  the  vendee,  in  case  of  failure  of  title,  even  though  the 
contract  of  sale  by  the  vendor  contains  a  similar  provision. 
Mead  v.  Altgeld,  136  111.  298,  26  N.  E.  388;  Reed  v.  Riddle,  48 
N.  J.  Ch.  359,  7  A.  487;  Smith  v.  H.  E.  Orr  Co.,  147  P.  1,  84 
Wash.  561.  See  also  Sees.  76a,  168. 


332  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  384.    Where  agent  gives  receipt  in  name  of  principal, 
purchaser  must  look  to  latter. 

Where  an  agent  receipts  for  money  in  the  name  of  his  prin- 
cipal, the  purchaser  must  look  to  the  latter  to  account  for  it,  and 
can  not  recover  from  the  agent,  whether  the  latter  has  delivered 
it  to  his  principal  or  not.  McCubbin  v.  Graham,  4  Kan.  340; 
Bamford  v.  Shuttleworth,  11  Ad.  &  El.  (Eng.),  926;  Hancock 
v.  Gomery,  58  Barb.  (N.  Y.),  490;  Colvin  v.  Holbrook,  2  N.  Y. 
126;  Costigan  v.  Newland,  12  Barb.  (N.  Y.),  1456.  See  Sees. 
385,  642b. 

Sec.  385.    Recepit  in  name  of  principal,  purchaser  may  recall 
before  money  is  paid  to  hi™ 

If  a  party  who  has  paid  money  to  an  agent  for  the  use  of  his 
principal  becomes  entitled  to  recall  it,  he  may,  upon  notice  to  the 
agent,  recall  it,  provided  the  agent  has  not  paid  it  over  to  his 
principal.  Bamford  v.  Shuttleworlh,  11  Ad.  &  El.  (Eng.),  926; 
Saddle  v.  Evans,  4  Burr,  1984;  1  Pars.  Con.  79;  Story  on  Ag., 
Sec.  300.  Compare  Sees.  642b,  384. 

Sec.  385a.     Receipt  of  broker  for  purchase  money  bound 
owner. 

Where  real  estate  brokers  conducted  negotiations  between  plain- 
tiffs and  defendant  for  a  sale  of  land,  receipt  by  them  of  the 
purchase  money  from  defendant  was  in  legal  effect  a  receipt 
thereof  by  plaintiffs.  Wilson  v.  White,  119  P.  895,  161  Cal.  453. 

Sec.  386.    Creditor  authorized  to  collect  rent  can  not  pay  there- 
from his  own  debt. 

A.  authorized  B.  to  collect  certain  rents,  and  directed  him  to 
apply  them,  (1)  to  the  payment  of  certain  demands  due  to 
third. persons,  and  then  to  the  payment  of  a  mortgage  held  by 
B.  B.  collected  the  rents,  which  did  not  amount  to  enough  to 
pay  the  preferred  demands,  and  appropriated  them  all  to  his 
own  claim.  In  an  action  by  A.  for  the  money,  Held,  that  B. 
could  not  set  off  his  own  demand.  Tagg  v.  Bowman,  108  Pa. 
St.  273.  See  references  under  Sec.  307. 


PRINCIPAL  AND  AGENT.  333 

Sec.  387.    Agent  to  collect  rent  must  apply  the  same  as  di- 
rected by  principal. 

Where  defendant,  after  he  had  been,  by  an  instrument  in 
writing,  authorized  by  the  owner  of  land  to  collect  rents  and 
make  certain  disposition  thereof,  accepted  an  order  by  such 
owner  directing  him  to  pay  a  specific  portion  of  the  accrued 
rents  to  the  payee  therein,  this  was  a  modification  of  the  orig- 
inal agreement  and  binding  upon  defendant,  though  he  might 
otherwise  have  been  entitled  to  apply  such  rent  to  the  satisfac- 
tion of  claims  held  by  him.  Gray  v.  Barge,  50  N.  W.  1014, 
47  Minn.  498. 

Sec.  388.    Broker  acting  in  the  interest  of  others,  not  entitled 
to  share  in  transaction  negotiated  for  principal. 

An  agreement  that  a  land  agent  shall  have  an  interest  in 
transactions  negotiated  by  him,  does  not  entitle  him  to  share 
in  a  transaction  in  which  he  acted  for  other  persons  from  whom 
he  received  compensation  for  effecting  the  sale.  Home  v.  In- 
graham,  125  111.  198,  16  N.  E.  868.  See  also  Sees.  290,  314. 

Sec.  389.    Broker  purchasing  property  not  entitled  to  commis- 
sions for  its  sale. 

An  agreement  by  a  real  estate  agent  to  divide  commissions  on 
the  sale  of  certain  property  if  plaintiff  should  find  a  purchaser 
does  not  entitle  plaintiff  to  a  share  of  the  commission,  where  he 
and  a  third  person  purchased  the  property.  Morganstern  v.  Hill, 
28  N.  Y.  S.  704,  8  Misc.  356;  Hess  v.  Gallagher,  117  N.  Y.  S. 
960.  See  also  Sec.  290.  Compare  Sec.  40. 

Sec.  389a.  Agent  can  not  become  the  buyer  of  the  principal's 
property,  even  when  sold  at  particular  price. 

An  agent  can  not  become  the  buyer  of  the  principal's  property, 
even  when  there  is  a  sale  at  a  particular  price.  RucTcman  v. 
Burgholz,  37  K  J.  L.  437;  Armstrong  v.  Elliott,  29  Mich.  485. 
Compare  Sees.  40,  290.  Welling  v.  Poulsen  (Mich.  Sup.  '10),  125 
N.  W.  373;  Single  v.  Russell,  80  A.  164,  114  Md.  418;  Sawyer  v. 
Issenbuh,  141  N.  W.  378,  31  S.  D.  502. 


334  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  389b.    When  employed  to  purchase,  agent  can  not  sell  his 
own  property  to  principal. 

When  employed  to  purchase  an  agent  can  not  sell  his  own 
property  to  his  principal.  Deep  River,  etc.,  v.  Fox,  4  Ired. 
(N.  C.)  Eq.  61;  Banks  v.  Judah,  8  Conn.  145;  Matthews  v. 
Light,  32  Me.  305;  Copeland  v.  M.  Ins.  Co.,  6  Pick.  (Mass.) 
198;  Moore  v.  Mandlebaum,  8  Mich.  433;  Moore  v.  Moore,  5 
N.  Y.  256;  Sturdevant  v.  Pike,  1  Ind.  277;  Segar  v.  Edwards, 
11  Leigh  (Va.)  213;  Shannon  v.  Marmaduke,  14  Tex.  217; 
Cumberland,  etc.,  Co.  v.  Sherman,  30  Barb.  (N.  Y.)  553. 

Sec.  389c.     Circumstances  under  which  agent  had  a  right  to 

purchase  the  property  for  himself. 

Defendant  was  employed  to  effect  a  purchase  of  real  estate 
at  a  price  not  to  exceed  $51,000,  and  to  take  a  contract  there- 
for in  his  own  name,  to  be  assigned  to  plaintiff.  Held,  that 
after  using  all  reasonable  efforts  to  obtain  said  property  for 
plaintiff  at  the  limited  sum,  without  success,  he  had  a  right  to 
purchase  the  same  for  himself  at  the  sum  of  $52,000,  the  con- 
tract of  employment  fixing  the  law  of  the  case,  without  regard 
to  the  fiduciary  relations  of  the  parties.  Pearsall  v.  Hirch,  14 
N.  Y.  S.  305;  Clark  v.  Delano  (Mass.  Sup.  '10),  91  N.  E.  299. 

See  also  Sec.  40. 

Sec.  390.    Broker  employing  liable  for  fraud  of  sub-agent. 

A  broker  is  liable  for  the  fraud  of  a  sub-agent  employed  by 
him,  and  not  in  privity  with  the  broker's  principal.  Barnard  v. 
Coffin,  141  Mass.  37,  C  N.  E.  364;  Estes  v.  Crosby,  175  N.  W. 
933,  amend,  of  man.  den.,  177  1ST.  W.  512,  —  Wis.  Sup.  — .  See 
also  Sec.  25. 

Sec.  390a.    Sub-agent  acting  in  good  faith  not  liable  for  mis- 
take of  his  principal. 

Where  a  sub-agent  had  reasonable  grounds  to  understand  that 
the  price  given  him  by  the  principal  agent  was  the  owner's  price, 
and  concealed  no  material  fact  within  his  knowledge  from  the 
purchasers,  he  incurred  no  liability  by  reason  of  his  representa- 
tion that  this  was  the  owner's  lowest  price,  as  an  agent,  acting  in 


PBINCIPAL  AND  AGENT.  335 

good  faith  and  with  reasonable  care,  is  not  liable  for  a  mistake  of 
his  principal.    Estes  v.  Crosby,  176  N.  W.  933,  amend,  of  man. 
den.,  177  N".  W.  512,  —  Wis.  Sup.  — . 
Sec.  391.    Sub-agent  concealing  fact  from  principal  deprived 

broker  of  right  to  commission. 

Where  a  sub-agent  conceals  from  the  principal  the  fact  that 
he  is  acting  for  the  agent,  the  latter  can  not  recover  a  com- 
mission. Mullen  v.  Bower,  22  Ind.  App.  294,  53  N.  E.  790. 
See  also  Sees.  25,  291. 

Sec.  392.    Sub-agent  exceeding  authority  can  not  bind  the 
principal  for  commissions. 

An  agent  to  receive  bids  for  property,  who  has  no  authority 
to  consummate  a  sale,  can  not  appoint  a  sub-agent  so  as  to 
bind  the  principal  for  commissions  on  a  sale  made  to  a  pur- 
chaser found  by  such  sub-agent.  Jones  v.  Brand,  106  Ky.  410r 
20  Ky.  L.  R.  1997,  50  S.  W.  679.  See  also  Sees.  381,  395. 

Sec.  392a.  Broker  selling  on  terms  varying  from  instructions. 
Where  a  broker  was  employed  to  sell  property  to  certain 
persons  on  a  payment  down  of  $17,500,  he  could  not  bind  his 
principal  by  accepting  a  part  payment  of  $10  only,  and  hence 
was  not  entitled  to  the  commissions.  Stoutenburg  v.  Evans 
(Iowa  Sup.  '09),  120  N.  W.  59.  See  references  under  Sec.  307. 

Sec.  392t>.  Broker  departing  from  instructions  in  making  sale. 
A  broker  employed  to  find  a  purchaser  who  would  pay  the 
purchase  price,  and  in  addition  assume  such  assessments  as 
might  be  levied  against  the  property,  did  not  comply  with  the 
terms  given  him  so  as  to  be  entitled  to  the  commission,  where, 
in  his  agreement  with  the  proposed  purchaser,  it  was  provided 
that  the  purchaser  might  assume  the  assessments,  and  if  he 
did  deduct  them  from  the  price.  Kane  v.  Dawson,  52  Wash. 
411,  100  P.  837.  See  references  under  Sec.  307. 

Sec.  393.    Principal  not  liable  to  compensate  sub-agent  em- 
ployed by  broker. 

Ordinarily  the  principal  is  not  liable  to  compensate  a  sub- 
agent  employed  by  the  broker  to  sell  the  property,  although 


336  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

authorized  to  take  any  steps  necessary.  Carroll  v.  Tucker,  21 
N.  Y.  S.  952,  2  Misc.  397;  Mason  v.  Clifton,  3  F.  &  F.  (Eng.) 
899;  J.  B.  Watkins  Ld.  Mtge.  Co.  v.  Thetford  (Tex.  Civ.  App. 
'06),  96  S.  W.  72;  Benham  v.  Ferris  (Mich.  Sup.  '10),  124 
N.  W.  538;  Sterling  v.  De  Laune  (Tex.  Civ.  App.  '07),  105 
S.  "W.  1169.  See  also  Sec.  25.  Unless  he  has  ratified  the  ap- 
pointment of  the  sub-agent.  Warren  Com.,  etc.,  Co.  v.  R.  E. 
Co.,  120  Mo.  App.  432,  96  S.  W.  1038. 

Sec.  394.    Broker  not  liable  for  poor  sale  by  sub-agent. 

If  an  owner  of  land  employs  a  broker  to  sell  it,  and  the 
broker  employs  an  agent  in  the  place  where  the  land  is,  and 
the  broker  honestly  believes  an  offer  made  by  the  agent  to 
be  a  good  one,  and  so  states  to  the  owner,  who  accepts  the  offer 
in  reliance  on  what  is  told  him,  the  broker  is  not  liable  if  the 
offer  turns  out  to  have  been  a  poor  one,  he  having  used  rea- 
sonable care  in  the  matter.  Barnard  v.  Coffin,  138  Mass.  37. 

Sec.  394a.    When  agent  without  implied  power  to  appoint 
sub-agent. 

The  power  of  a  real  estate  broker  to  give  an  option  for  a  lim- 
ited time,  and  to  extend  such  time,  is  in  the  nature  of  a  personal 
trust,  so  as  to  negative  any  implied  power  to  appoint  a  sub-agent 
for  whose  services  the  principal  will  be  liable.  Sorenson  v.  Smith, 
129  P.  737,  65  Or.  78,  51  L.  R.  A.  (N.  S.),  612,  Ann.  Cas. 
1915  A,  1127;  judg.  aff.  on  re.,  131  P.  1022,  65  Or.  78. 


CHAPTER  VIII. 


SECTION. 

395.  Sub-agent    violating    instruc- 

tion. 

396.  Sub-agent    entitled    to    share 

of  one-half  commissions. 
396a.  Sub-agent    confined    to    share 
stipulated,  and  not  entitled 
to    share    of    extra    commis- 
sion to  chief. 

397.  Agreement  with  sub-agent  to 

divide  fees  binding  on  pro- 
ducing customer. 

397a.  Sub-agent  entitled  to  half 
commission  growing  out  of 
combined  option  and  sale. 

397b.  Sub-agent  employed  to  as- 
sist entitled  to  recover  re- 
gardless of  value  of  service 
rendered. 

398.  One    employing    agent    liable 

for  commissions. 

399.  Secretly    learning    price    and 

sending   buyer,   broker   does 
not  earn  commission. 
399a.  Broker    entitled    to    commis- 
sion   on   sale    by    owner    to 
his  customer. 

400.  Secretly      representing      both 

parties  bars  commissions. 

401.  Vendor  acts  in  bad  faith  by 

giving  commissions  to  pur- 
chaser's agent. 

402.  Broker    required    to    exercise 

the  skill  of  calling. 

403.  Broker    may    be    responsible 

for    sufficiency    of    security. 


SECTION. 

403a.  Contract  held  to  guaranty 
payment  of  $5,000  for  land 
sold  at  public  sale. 

404.  Broker  must  account  to  prin- 

cipal for  money  received — 
Statute  of  frauds  no  pro- 
tection. 

404a.  Broker  required  to  account 
for  proceeds  of  land  sold 
by  him  in  trust  to  pay 
debts  of  owner. 

405.  Broker  for  seller,  member  of 

purchasing  syndicate,  bars 
commissions. 

406.  Broker  giving  names  of  syn- 

dicate before  formed — 
Owner  selling  to  others 
bars  commissions. 

407.  Tenants    in    common    jointly 

liable  for  commissions. 
407a.  Three      brothers      employing 
agent     to     sell     realty     for 
family   personally   liable   on 
contract. 

408.  Broker     selling     lower     than 

authorized  bars  commis- 
sions. 

409.  Terms    of    authorization    can 

not  be  varied. 

409a.  Owner  not  bound  to  accept 
customer  from  broker  at 
less  price  than  stipulated. 

410.  Half   cash   complied   with   by 

sale  for  all  cash. 

337 


338  AMERICAN  LAW   REAL  ESTATE  AGENCY. 

SECTION.  SECTION. 

410a.  Broker  authorized  to  sell  for  realty  can  not  be  modified 

half  cash  and  remainder  on  orally. 

time    can    not    sell    for    all  412.     Failing  to  disclose  best  terms 

cash.  bars    commissions.    ' 

411.     Contract  modified,   rights  de-  412a.  Broker      understating      price 

pend  on  new.  obtainable    liable   to   princi- 

41  la.  Written     authority     to     sell  pal  for  loss. 

Sec.  395.    Sub-agent  violating  instructions  in  obtaining  offer 
in  advance  of  bids. 

One  who  has  been  employed  by  the  agent  to  assist  him  in  ob- 
taining bids  for  property,  was  not  acting  under  that  authority 
when  he  advised  others  to  make  the  principal  an  offer  in  advance 
of  the  bid  obtained  by  the  agent  which  was  about  to  be  accepted 
by  the  principal.  Jones  v.  Brand,  106  Ky.  410,  20  Ky.  L.  E. 
1997,  50  S.  W.  679.  See  Sees.  381,  392. 

Sec.  396.    Sub-agent  ordinarily  entitled  to  share  of  one-half 
the  commissions. 

Where,  in  an  action  for  a  division  of  broker's  commissions,  de- 
fendant agreed  to  pay  one-half  of  the  commissions  earned  on  the 
sale,  and  defendant  admitted  receiving  $287.50,  it  was  proper  for 
the  court  to  assess  plaintiff's  damages  at  one-half  of  such  sum. 
McCleary  v.  Willis,  36  Wash.  676,  77  P.  1073;  Bray  v.  Riggs, 
110  Mo.  App.  630,  85  S.  W.  116. 

Sec.  396a.    Sub-agent  confined  to  share  stipulated,  and  not  en- 
titled to  share  of  extra  commission  to  chief. 

Where  owner  of  property  agreed  to  pay  plaintiffs  5%  commis- 
sion for  a  sale,  and  they  engaged  defendants  to  assist  them,  agree- 
ing to  give  them  %  of  such  commission,  they  are  not  entitled  to 
share  any  further  commission  which  owner  agreed  to  give  plain- 
tiffs. Smith  v.  GoldsborougJi,  167  N.  Y.  Sup.  297,  179  App. 
Div.  769. 

Sec.  397.    Agreement  with  sub-agent  to  divide  fees  binding  on 
producing  purchaser. 

Where  plaintiff  was  authorized  by  the  owner  of  land  to  sell 
it,  and  agreed  to  share  the  commission  with  defendant  in  case 


PRINCIPAL  AND  AGENT.  339 

» 

the  latter  found  a  purchaser,  the  contract  was  unilateral,  binding 
on  neither  party  until  defendant  found  a  purchaser.  Wefel  v. 
Stillman,  151  Ala.  249,  44  S.  203;  Casey  v.  Richards,  101  P.  36 
(Cal.  App.  '09);  Painter  v.  Lamb,  65  Pa.  Super  Ct.  13;  Pry  or 
v.  Scott,  200  S.  W.  909,  —  Tex.  Civ.  App.  — ;  Steinbroolc  v.  Wil- 
son, 190  P.  606,  --  Kan.  Sup.  — ;  Winslow  v.  Day,  183  N.  Y. 
Sup.  2;  Piper  v.  Allen,  219  S.  W.  98,  --  Mo.  App.  — ;  John  v. 
Thrower,  75  S.  E.  819,  11  Ga.  App.  494.  See  also  Sec.  20. 

Sec.  397a.    Sub-agent  entitled  to  half  commission  growing  out 
of  combined  option  and  sale. 

There  was  a  consummation  of  a  sale  to  a  customer  of  plaintiff, 
a  real  estate  agent,  so  as  to  entitle  him  to  half  the  commission 
under  an  agreement  with  defendant,  another  real  estate  agent, 
though  only  an  option  was  given  such  customer,  and  then  a  resale 
was  made  directly  from  the  first  vendor  to  the  second  vendee,  and 
division  of  the  price  paid  by  the  second  vendee  made  on  the  basis 
of  the  two  sales.  C  off  man  v.  Dyas  Realty  Co.,  159  S.  W.  842, 
176  Mo.  App.  692. 

Sec.  397b.     Sub-agent  employed  to  assist  entitled  to  recover 
regardless  of  value  of  service  rendered. 

In  an  action  against  brokers  to  recover  for  services  rendered  in 
assisting  them  in  making  a  sale,  plaintiffs  right  to  recover  did 
not  depend  on  whether  he  was  the  procuring  cause,  but  whether 
he  did  assist,  and  whether  his  services  were  of  any  value,  provided 
there  was  a  contract  for  such  services,  either  express  or  implied. 
Piper  v.  Allen,  219  S.  W.  98,  —  Mo.  App.  — . 

Sec.  398.    One  employing  an  agent  to  find  a  purchaser  liable 
for  commissions. 

One  who  employed  a  broker  to  find  a  purchaser  for  real  estate, 
and  who  did  not  disclose  to  the  broker  that  he  was  acting  as  an 
agent,  and  did  not  disclose  his  principal  until  after  the  broker 
had  found  a  purchaser,  was  liable  to  the  broker  for  commissions. 
TaubenUatt  v.  GalewsJci,  108  K  Y.  S.  588.  See  also  Sec.  222. 

Where  an  owner's  broker  employed  plaintiff  to  sell  the  real 
estate,  agreeing  to  pay  one-half  of  the  commission  in  case  of  a 


340  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

» 

sale  on  the  terms  specified,  and  the  owner  thereafter  ratified  such 
employment,  plaintiff  was  entitled  to  recover  commissions  against 
the  owner,  and  was  not  limited  to  its  action  against  the  broker. 
Warren  Com.  &  Inv.  Co.  v.  Leon  L.  Hull  R.  E.  Co.,  96  S.  W. 
1038,  120  Mo.  App.  432. 

Sec.  399.     Secretly  learning  price  of  property  and  sending 
buyer,  broker  not  entitled  to  commissions. 

Where  owners  of  real  estate  expressly  refused  to  employ  the 
plaintiff,  a  broker,  in  selling  their  property,  it  was  held  that  the 
mere  fact  that  the  plaintiff,  having  ascertained  the  price  charged 
for  the  property,  sent  a  purchaser,  to  whom  a  sale  was  effected, 
did  not  entitle  the  plaintiff  to  recover  commissions.  Pierce  v. 
Thomas,  4  E.  D.  Smith,  354.  See  also  Sec.  443. 

Sec.  399a.    Broker  entitled  to  commission  on  sale  by  owner 
to  his  customer  stopping  broker  from  completing. 

Broker  entitled  to  commission  for  sale  made  by  owner  after 
holding  up  negotiations  begun  by  the  broker.  Hutto  v.  Stough  & 
Hornsby,  47  S.  1031,  157  Ala.  566;  Alexander  v.  Smith,  61  S. 
68,  180  Ala.  541. 

Sec.  400.    Secretly  representing  both  parties  defeats  broker's 
right  to  commissions. 

A  real  estate  agent  who  secretly  undertakes  to  represent 
both  parties,  is  not  permitted  to  recover  commissions  from 
either.  Williams  v.  Moore-Gaunt  Co.,  3  Ga.  App.  756,  60  S.  E. 
372;  Hess  v.  Gallagher,  117  K  Y.  S.  960;  John  v.  Thrower,  75 
S.  E.  819,  11  Ga.  App.  494;  Welch  v.  Garrett  Biblical  Ins.,  186 
111.  App.  191;  Wheeler  v.  Lawler,  110  N.  E.  273,  222  Mass.  210; 
Cohn  v.  Cohen,  157  N.  Y.  Sup.  125;  Crawford  v.  Surety  Inv.  Co., 
139  P.  481,  91  Kan.  748;  Maddux  v.  St.  Louis  Union  Trust  Co., 
171  S.  W.  669,  186  Mo.  App.  138.  See  also  Sec.  314. 

Sec.  401.  Giving  commissions  to  purchaser's  agent  vendor  acts 
in  bad  faith,  but  contract  not  void. 

The  act  of  the  vendor  in  giving  secret  commissions  to  the 
vendee's  agent,  although  contrary  to  good  faith  and  the  policy 


PRINCIPAL  AND  AGENT.  341 

of  the  law,  does  not  make  the  contract  of  sale  absolutely  void. 
Lightcap  v.  Nicola,  34  Pa.  Super.  Ct.  189.  Compare  Grant  v. 
Gold  Ex.  Syn.,  12  B.  (Eng.)  233,  69  L.  J.  2  B.  150.  See  also 
Sec.  40. 

Sec.  402.     Broker  required  to  exercise  such  skill  as  is  employed 

by  persons  in  his  calling. 

A  broker  is  required  to  use  such  skill  as  is  ordinarily  po§- 
sessed  and  employed  by  persons  of  common  capacity  engaged 
in  the  same  trade  or  business,  and  such  diligence  as  persons 
of  common  prudence  are  accustomed  to  use  about  their  own 
business  affairs.  Bronnenburg  v.  Rinker,  2  Ind.  App.  391,  28 
N.  E.  568;  Shepherd  v.  Field,  70  111.  438;  McFarland  v. 
McClus,  1  Pa.  Cases,  504,  5  Atl.  50;  Mechem  on  Ag.,  Sec.  494. 

Sec.  403.     Broker  may  be  responsible  for  the  sufficiency  of  the 

security. 

Where  a  vendor  relies  on  his  broker  in  the  sale  of  property, 
he  must  exercise  reasonable  care  in  passing  on  the  sufficiency 
of  the  security  taken  for  the  price,  if  he  has  accepted  that  re- 
sponsibility. Harlow  v.  Bartlett,  170  Mass.  584,  49  N.  E.  1014. 

Sec.  403a.    Contract  held  to  guaranty  payment  of  $8,000  for 
land  sold  at  public  sale. 

Provision  in  a  contract  by  which  defendant  was  to  sell  land  for 
plaintiff  at  public  sale;  held,  a  guaranty  that  defendant  would 
pay  plaintiff  $8,000  in  cash  on  the  day  of  sale.  Barkley  v.  Atl. 
Coast  Realty  Co.,  87  S.  E.  219,  —  N.  C.  Sup.  — . 

Sec.  404.     Broker  must  account  to  principal  for  money  re- 
ceived and  withheld,  and  statute  of  frauds  no  protection. 

Although  an  appointment  in  writing  is  necessary  to  constitute 
one  an  agent  for  the  sale  of  real  estate,  one  who  sells  real  estate 
as  the  owner's  agent  would  not  be  justified  in  retaining  the  dif- 
ference between'  the  amount  that  he  represented  to  his  principal 
he  received  for  the  property  and  the  amount  he  actually  received, 
because  his  appointment  was  not  in  writing.  Merriman  v. 
Thompson,  48  Wash.  500,  93  P.  1075.  See  also  Sec.  456. 


342  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

Sec.  404a.  Broker  required  to  account  for  proceeds  of  land 
sold  by  him  in  trust  to  pay  debts  of  owner. 

Where  an  owner  conveyed  land  to  brokers  upon  a  contract 
that  they  should  sell  it,  and  out  of  the  proceeds  pay  his  debts, 
and  turn  over  the  balance,  after  deducting  their  compensation, 
such  brokers,  upon  sale  of  the  land,  can  not  refuse  to  account  to 
the  owner  because  a  note  given  by  such  owner,  secured  by  a  mort- 
gage on  the  land  conveyed  and  other  land,  is  still  outstanding. 
Morrison  v.  Neely,  214  S.  W.  586,  —  Tex.  Civ.  App.  — . 

Sec.  405.  Broker  for  seller,  member  of  purchasing  syndicate, 
bars  commissions. 

The  fact  that,  unknown  to  the  principal,  a  member  of  a  firm 
employed  to  sell  land  belongs  to  the  syndicate  to  which  the 
land  was  sold,  bars  the  first  from  recovering  commissions  for 
the  sale,  though  the  price  received  by  the  principal  was  fair  and 
all  that  he  demanded.  Hammond  v.  Bookwalter,  12  Ind.  App. 
177,  39  N.  E.  872.  See  also  Sec.  559. 

Sec.  406.  Broker  giving  names  of  syndicate  to  owners,  and  be- 
fore formed  latter  sells  to  others,  broker  barred  commis- 
sions. 

In  an  action  by  a  real  estate  broker  to  recover  commissions 
it  appeared  that  he  furnished  the  names  of  the  members  of  a 
purchasing  syndicate  to  the  owner,  but  the  syndicate  was  not 
fully  formed,  and  all  the  purchasers  were  not  then  known,  and 
it  did  not  appear  what  proportion  of  the  price  each  was  to 
pay,  and  the  owner  sold  to  others  before  the  syndicate  was 
fully  formed.  Held,  that  the  broker  could  not  recover  commis- 
sions, as  he  did  not  produce  a  person  ready  and  willing  to 
purchase.  Gerding  v.  Haskin,  141  N.  Y.  514,  36  N.  E.  601. 

Sec.  407.  Tenants  in  common  jointly  liable  for  broker's  com- 
missions. 

Where  land  is  owned  by  two  tenants  in  common,  and  is 
placed  in  the  hands  of  one,  who  sells  it  through  a  broker,  the 
owners  are  jointly  liable  for  the  broker's  commissions.  Clif- 
ford v.  Meyer,  6  Ind.  App.  633,  34  N.  E.  23;  Schomberg  v. 


PRINCIPAL  AND  AGENT.  343 

Auxier,  101  Ky.  292,  19  Ky.  L.  E.  548,  40  S.  W.  911 ;  Eeithly  v. 
Ward,  217  S.  W.  428,  —  Tex.  Civ.  App.  — . 

Sec.  407a.    Three  brothers  employing  agent  to  sell  realty  for 
family  personally  liable  on  contract. 

Where  three  brothers  assumed  to  act  for  themselves  and  other 
brothers  and  sisters  in  employing  an  agent  to  sell  farm  belonging 
to  them,  the  three  were  personally  liable  for  the  whole  commis- 
sion if  the  others  did  not  know  of  or  assent  to  contract  of  em- 
ployment. Roberts  v.  Goodlad,  166  K  W.  646,  167  Wis.  318. 

Sec.  408.    Broker  effecting  sale  on  lower  terms  than  autho- 
rized loses  commissions. 

A  broker  must  follow  the  instructions  of  his  employer;  there- 
fore, one  who  is  promised  compensation  if  he  will  procure  a  pur- 
chaser for  property  on  certain  terms  can  not  claim  compensation 
for  effecting  a  sale  on  lower  terms,  he  having,  moreover,  acted  in 
part  in  the  buyer's  interest.  Williams  v.  McGraw,  52  Mich.  480, 
18  K  W.  227;  McDonald  v.  Cabiness,  100  Tex.  615,  98  S.  W.  943, 
102  S.  W.  720;  Yarn  v.  Pelott,  55  Fla.  357,  45  S.  1015;  Ryan  v. 
Page,  111  N.  W.  405,  134  Iowa,  60.  See  also  Sees.  141,  422,  898. 

Sec.  409.    Terms  of  authorization  can  not  be  varied  by  the 
broker. 

A  letter  authorizing  agents  to  sell  land  for  $2,200,  provided 
that  the  party  could  pay  $700  down,  and  the  balance  in  one, 
two  and  three  years,  does  not  authorize  them  to  sell  for  $1,000 
down  and  the  balance  in  one  and  two  years.  Speer  v.  Craig, 
16  Colo.  478,  27  P.  891;  Bunks  v.  Pierce,  33  Colo.  440,  80  P. 
1036;  Rake  v.  Townsend  (Iowa  Sup.  '05),  102  N.  W.  499; 
Crosthwaite  v.  Lebus,  146  Ala.  525,  41  S.  853;  Engle  v.  John- 
son, 34  Ind.  App.  593,  73  N.  E.  772 ;  Spengler  v.  Sonnenberg,  88 
0.  S.  192;  Wiggins  v.  Est.  of  Chas.  E.  Coddingion,  145  N".  Y. 
Sup.  3,  83  Misc.  Rep.  439;  Pehl  v.  Fanton,  119  P.  400,  17  Cal. 
App.  247;  Parker  v.  Stubbs,  76  S.  E.  571,  139  Ga.  46;  Gore  v. 
Griffith  Realty  Co.,  169  S.  W.  685,  160  Ky.  241;  Dahlgard  v. 
Florida  Dev.  Cor.,  187  111.  App.  282;  McFarland  v.  Howell,  143 
N.  W.  860,  162  Iowa,  140;  Compton  v.  Echols,  120  P.  637,  31 
Okl.  151 ;  Turner  v.  Baker,  74  A.  172,  225  Pa.  359 ;  Cavanaugh 


344  AMEEICAN  LAW  KEAL  ESTATE  AGENCY. 

v.  Conway,  90  A.  1080,  36  E.  I.  571 ;  Caldwell  v.  Scott  Bros.,  143 
S.  W.  1192,  —Tex.  Civ.  App.  — ;  Prichard  v.  Foster,  170  S.  W. 
1077,  --  Tex.  Civ.  App.  — ;  Little  v.  Gorman,  114  P.  321,  39 
Utah,  63;  Reitz  v.  Bryant,  127  P.  583,  71  Wash.  53;  Noyes  v. 
Caldwell  104  N.  E.  495,  216  Mass.  525;  Nash  v.  Childers,  160 
S.  W.  485,  155  Ky.  772 ;  Gillespie  v.  Rosenbaum,  173  N.  Y.  Sup. 
429;  Alexander  v.  Anderson,  207  S.  W.  205,  --  Tex.  Civ.  App. 
— ;  Nichols  &  Jackson  v.  Carson,  220  S.  W.  297,  —  Tex.  Civ. 
App.  — .  See  also  Sec.  213. 

Sec.  409a.    Owner  not  bound  to  accept  customer  from  broker 
at  less  price  than  stipulated. 

Defendant  owner  was  not  bound  to  accept  from  plaintiff  bro- 
ber  a  customer  at  a  price  less  than  that  stipulated,  although  he 
was  at  liberty  to  accept  a  less  price  from  another  customer.  Mul- 
len v.  Crawford,  166  N.  W.  694,  —  Iowa  Sup.  — . 

Sec.  410.    Terms  of  half  cash  complied  with  by  sale  for  all 
cash  on  delivery  of  deed. 

Where  a  contract  authorizes  an  agent  to  sell  land  for  "$15,000, 
about  one-half  cash,"  but  is  silent  as  to  a  sale  for  any  larger  sum, 
or  as  to  receiving  more  than  one-half  cash,  or  as  to  the  form  in 
which  that  part  of  the  price  which  is  not  cash  should  be  put,  a 
sale  for  $15,000  cash  on  delivery  of  the  deed  is  in  accordance 
with  the  contract.  Witherell  v.  Murphy,  147  Mass.  417,  18  K.  E. 
215;  Pope  v.  Peeples,  121  S.  E.  303,  —  Ga.  App.  — .  Compare 
Sec.  410a. 

Sec.  410a.     Broker  authorized  to  sell  for  half  cash  and  re- 
mainder on  time  can  not  sell  for  all  cash. 

A  broker  employed  to  sell  land  for  one-half  cash  and  balance 
on  credit,  can  not  recover  a  commission  on  the  owner  refusing  to 
consummate  a  sale  for  all  cash,  unless  the  credit  required  to  be 
extended  was  so  short  as  to  make  it  in  effect  a  cash  payment. 
Taylor  v.  Read  (Tex.  Civ.  App.  '08),  113  S.  W.  191.  Compare 
Sec.  410.  See  references  under  Sec.  307. 


PKINCIPAL  AND  AGENT.  345 

Sec.  411.    Where  the  contract  of  employment  is  modified,  bro- 
ker's rights  depend  upon  the  new. 

The  terms  of  a  contract  of  employment  may  be  modified  by  a 
subsequent  agreement,  express  or  implied,  the  same  as  any 
other  contract,  in  which  case  the  broker's  right  to  compensa- 
tion depends  upon  the  modified  terms.  Cornell  v.  Hanna  (Kan. 
App.  '98),  53  P.  790;  Deford  v.  Shepard,  6  Kan.  App.  428,  49 
P.  795;  May  v.  Schuyler,  43  K  Y.  Super.  Ct.  95;  Martin  v. 
Crumb,  111  N.  E.  62,  216  N.  Y.  500,  rev.  judg.,  142  N.  Y.  Sup. 
1096,  158  App.  Div.  228,  app.  to  Ct.  App.  and  re.  den.,  143  N.  Y. 
Sup.  1130,  158  App.  Div.  939;  Hamilton  v.  Hathaway,  133  S.  W. 
629,  152  Mo.  App.  483;  Schano  v.  Storch,  137  N.  Y.  Sup.  26,  56 
Misc.  Rep.  484;  Webb  v.  Harding,  211  S.  W.  927,  aff.  judg.,  159 
S.  W.  1129,  —  Tex.  Civ.  App.  — ;  Greene  v.  Minn.  Billiard  Co., 
176  N".  W.  239,  —  Wis.  Sup.  — ;  Thornburg  v.  Haun,  190  P. 
1083,  —  Okl.  Sup.  — ;  Chandler  v.  Gaines-Ferguson  Realty  (7o., 
224  S.  W.  484,  —  Ark.  Sup.  — ;  Fisher  v.  Slcidmore  Land  Co., 
179  N.  W.  152,  —  Iowa  Sup.  — . 

Sec.  411a.    Written  authority  to  sell  realty  can  not  be  modi- 
fied orally. 

Where,  after  written  authorization  to  brokers  to  negotiate  an 
exchange  of  specific  property  was  withdrawn,  the  brokers  were 
orally  requested  to  negotiate  an  exchange  of  a  part  of  the  prop- 
erty on  different  terms;  held,  that  their  services  were  not  per- 
formed pursuant  to  a  contract  or  memorandum  in  writing,  as 
required  by  Civil  Code,  Sec.  1624.  Fogg  v.  Me  Adam,  144  P. 
296,  25  Cal.  App.  522. 

Under  Ann.  Code,  Sec.  1624,  where  a  written  authorization  to 
brokers  is  for  an  exchange  of  specific  property,  and  not  a  gen- 
eral authorization  to  sell,  it  can  not  be  modified  orally.  Id. 
Wellmyer  v.  Crawford,  89  N".  E.  892,  48  Ind.  App.  173,  re.  den., 
93  N.  E.  1051,  48  Ind.  App.  173. 


346  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

Sec.  412.    Broker  failing  to  disclose  to  the  principal  the  best 
terms  loses  right  to  commissions. 

A  broker  employed  to  buy  or  sell  property  is  not  entitled  to 
compensation  where  he  fails  to  act  in  good  faith  and  disclose 
to  his  principal  the  best  terms  upon  which  the  transaction  can 
be  consummated.  Henderson  v.  Vincent,  84  Ala.  99,  4  S.  180; 
Morey  v.  Laird,  108  Iowa,  670,  77  N.  W.  835;  Carpenter  v. 
Fisher,  175  Mass.  9,  55  N.  E.  479;  Martin  v.  Bliss,  10  N.  Y.  S. 
886,  57  Hun,  157;  Ballmger  v.  Wilson  (N.  J.  Ch.  '02),  53  A.  488. 
See  also  Sec.  412a. 

Sec.  412a.     Broker  understating  price  obtainable  liable  to 
principal  for  loss. 

If  the  broker  employed  to  sell  or  exchange  property  under- 
states to  the  principal  the  best  price  or  arrangement  obtain- 
able, the  principal  is  entitled  to  recover  from  him  the  differ- 
ence between  that  obtained  and  that  which  might  have  been 
obtained.  Holmes  v.  Caihcart,  88  Minn.  213,  92  N.  W.  956,  60 
L.  R.  A.  734;  Baldwin  v.  Lewis  H.  May  Co.,  Ill  N.  Y.  Sup.  121. 
See  also  Sees.  290,  412. 


CHAPTER  IX. 


SECTION. 

413.  Unless    clothed    with    power 

by  owner  no  one  can  trans- 
fer title  to  another's  land. 

414.  Fraudulent     acts     of     broker 

may  give  rise  to  an  action 
of  tort. 

414a.  Proceedings  to  enforce  one 
remedy  barred  any  other. 

415.  Unauthorized   negotiations   of 

broker  not  ratified  by  sale 
by  owner  to  customer. 

416.  Broker     accepting     valuation 

made  by  buyer — Principal 
bound  thereby. 

416a.  Owner  bound  by  legitimate 
effect  of  his  language  rather 
than  his  own  understanding 
of  its  import. 

417.  In  some  States  power  to  sell 

and  convey  land  includes 
power  to  give  covenants  of 
warranty. 

418.  In   others   power   to  warrant 

specially  conferred. 
418a.  Broker    to    sell    land    has   no 
power  to  bind  principal  by 
contract  to  sell  and  convey. 

419.  Contract  for  sale  of  real  es- 

tate   may    be    sold    without 


SECTION. 

authority  conferred  in  writ- 
ing. 

419a.  Contract  with  broker  to  sell 
land  not  required  to  be  in 
writing. 

420.  When    duty    of    prnicipal    to 

collect  purchase  money 
notes. 

420a.  Duty  to  collect  purchase 
price  devolves  on  seller. 

420b.  Vendors  not  required  to  ac- 
cept payments  for  land  by 
checks. 

421.  Presumption  after  revocation 

that  broker  acts  for  pur- 
chaser. 

42  la.  One  receiving  inquiry  from 
broker  as  to  price  of  land 
may  infer  he  is  acting  for 
another. 

422.  Authority    to    sell    for    fixed 

sum  binding. 

422a.  Authority  to  sell  for  speci- 
fied sum  is  for  cash  only. 

422b.  Allegation  in  broker's  peti- 
tion for  finding  a  purchaser 
for  land  held  to  mean 
wholly  or  partly  for  cash. 


Sec.  413.     Unless  clothed  with  power  by  owner  no  one  can 
transfer  title  to  another's  land. 

No  one  can  transfer  title  to  another's  property,  unless  the 
owner  has  clothed  him  with  authority,  real  or  apparent,  to  do 
so.  McOoldrick  v.  Willits,  52  N.  Y.  612. 

347 


348  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  414.    Fraudulent  acts  of  broker  may  give  rise  to  an  ac- 
tion of  tort. 

If  a  broker  employed  to  sell  property  understates  to  his 
principal  the  price  received  by  him  and  appropriates  the  differ- 
ence, must  account  to  him  therefor.  Collins  v.  McClurg,  1  Colo. 
App.  348,  29  P.  299 ;  Helberg  v.  Nickol,  149  111.  App.  249,  37 
N.  E.  63;  Cornwall  v.  Foord,  96  IU.  App.  366;  Bassett  v. 
Rogers,  165  Mass.  377,  43  N.  E.  180 ;  Stearns  v.  Hockbrunn,  24 
Wash.  206,  64  P.  165 ;  Love  v.  Hass,  62  Ind.  255 ;  Henshaw  v. 
Wilson,  46  111.  App.  364.  And  in  addition,  his  fraudulent  con- 
duct may  subject  him  to  an  action  for  a  breach  of  the  con- 
tract. Barnard  v.  Coffin,  141  Mass.  27,  6  N.  E.  364.  Or  to  an 
action  of  tort.  Emmons  v.  Alvord,  177  Mass.  466,  59  N.  E.  126. 
See  also  Deceit,  Sec.  298. 

Sec.  41 4a.  Proceeding  to  enforce  one  remedy  barred  any  other. 
In  an  action  by  some  of  the  members  of  a  syndicate  which 
own  an  equitable  interest  in  property,  the  legal  title  to  which 
is  held  by  another  in  trust  for  all  the  members,  'for  the  amount 
received  by  the  holder  of  the  legal  title  from  a  broker  em- 
ployed by  him  to  procure  a  purchaser  of  the  property,  as  a 
part  of  the  commission  to  be  retained  by  the  broker,  on  the 
ground  of  a  fraudulent  agreement  between  the  holder  of  the 
legal  title  and  the  broker  for  a  division  of  the  commissions, 
bars  an  action  against  the  broker  for  a  rescission  of  the  con- 
tract of  employment  and  a  reclamation  of  the  commission  re- 
tained by  the  broker.  Hechscher  v.  Blinton  (Va.  Sup.  '10), 
66  S.  E.  859. 

Sec.  415.    Unauthorized  negotiations  of  brokers  not  ratified  by 

the 'sale  by  owner  to  customer. 

Defendants  employed  plaintiff  to  procure  a  purchaser  for 
a  ranch,  and  subsequently  revoked  the  agency,  and  in  the 
course  of  subsequent  correspondence  continually  insisted  that 
the  ranch  was  not  for  sale,  and  that  if  defendants  should  sell 
the  ranch  they  would  not  recognize  any  claim  for  commissions 
which  plaintiff  might  make.  Held,  that  the  subsequent  sale  of 
the  land  by  defendants  to  a  purchaser  with  whom  plaintiff 
had  negotiated,  was  not  a  ratification  of  that  unauthorized  act 
so  as  to  entitle  plaintiff  to  commissions.  Loving  Co.  v.  Hes- 
perian Cattle  Co.,  176  Mo.  330,  75  S.  W.  1095.  See  Sec.  24. 


PRINCIPAL  AND  AGENT.  349 

Sec.  416.    Broker  accepting  valuation  made  by  buyer,  prin- 
cipal bound  thereby. 

Where  an  agent  negotiating  a  sale  of  the  interest  in  an  es- 
tate accepts  the  valuation  of  the  property  made  by  the  intend- 
ing purchaser,  and  fails  to  examine  the  county  records,  or  take 
other  steps  to  inform  himself  of  the  real  value,  as  advised  to 
do,  he  will  be  held  to  have  acted  on  his  own  judgment,  and 
no  relief  will  be  granted  to  his  principal  if  it  turns  out  that 
the  lands  are  more  valuable  than  they  were  represented  to  be. 
Herron  v.  Herron,  32  N.  W.  407,  71  Iowa,  428.  See  also,  Sec. 
25. 

Sec.  416a.    Owner  bound  by  legitimate  effect  of  his  language 
rather  than  his  own  understanding  of  its  import. 

Where  the  language  used  by  the  owner,  in  conference  with 
the  broker,  and  the  attending  circumstances,  were  such  as  to 
justify  the  broker  in  believing  that  an  extension  of  time  in 
which  to  make  the  sale  was  given,  and  he  acted  on  such  belief, 
the  owner  is  bound  by  the  legitimate  effect  of  his  language 
and  acts,  rather  than  by  his  own  understanding  of  their  im- 
port. Hancock  v.  Stacey  (Tex.  Sup.  '10),  125  S.  W.  884. 

Sec.  417.    In  some  States  power  to  sell  and  convey  land  in- 
cludes power  to  give  covenants  of  warranty. 
In  some  jurisdictions  the  power  to  sell  and  convey  land  in- 
cludes authority  to  convey  it  with  covenants  of  general  war- 
ranty.    Taggart  v.  Stanberry,  2  McLain  (U.  S.),  543;  Peters 
v.  Farnsworth,  15  Vt.  155;  Venada  v.  Hopkins,  1  J.  J.  Marsh. 
(Ky.)   285,  293;  Le  Eoy  v.  Beard,  8  How.  (U.  S.)  451.     See 
next  section.    See  Sec.  43. 

Sec.  418.    In  some  jurisdictions  the  power  to  sell  with  cove- 
nants of  warranty  must  be  specially  conferred. 
A  broker  employed  to  sell  real  property  has  ordinarily  no 
power  to  effect  a  sale  with  warranty,  and  if  he  does  it  is  such  a 
departure  from  his  authority  that  the  contract  will  not  bind 
the  principal.     Tazel  v.  Palmer,  88  111.  597;  Tudro  v.  Gush- 
man,  2  Wis.  279;'  Nixon  v.  Hyserott,  5  Johns.  Ch.  (N.  Y.)  58; 


350  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

Coleman  v.  Garrigues,  18  Barb.  (N.  Y.),  60;  Malone  v.  McCul- 
lougli,  15  Colo.  460,  24  P.  1040;  Stengel  v.  Sargeant  (N.  J. 
Eq.  '08),  68  A.  1106.  See  preceding  Section.  Compare  Sec. 
328k. 

Sec.  418a.    Broker  to  sell  land  has  no  power  to  bind  principal 
by  contract  to  sell  and  convey. 

Where  brokers  were  authorized  to  purchase  and  sell  lands  at  a 
specified  price,  under  certain  conditions,  or  to  find  a  purchaser, 
they  had  no  power  to  bind  their  principal  by  a  contract  to  sell 
and  convey.  Robertson  v.  Allen,  184  F.  372,  107  C.  C.  A.  254; 
La  Plant  v.  Loveland,  170  N.  W.  920,  —  Minn.  Sup.  — . 

Sec.  419.     Broker  may  sell  a  contract  for  the  sale  of  real 
estate  without  written  authority. 

Penal  Code,  Sec.  640d,  requiring  written  authority  to  authorize 
a  broker  to  sell  real  estate  for  clients,  does  not  apply  to  the 
employment  of  brokers  to  sell  a  contract  for  the  sale  of  real  es- 
tate at  a  higher  price  than  that  which  the  vendees  had  agreed  to 
pay.  Levy  v.  Trimble,  94  1ST.  Y.  S.  3,  47  Misc.  394. 

Sec.  419a.    Contract  with  broker  to  sell  land  not  required  to 
be  in  writing. 

Where  the  authority  given  to  a  broker  to  effect  a  sale  of  land 
does  not  require  the  contract  of  sale  to  be  in  writing,  the  agree- 
ment to  pay  him  a  commission  is  not  within  the  statute  of  frauds, 
and  is  valid,  though  not  in  writing.  Low  Moor  Iron  Co.  of  Va.  v. 
Jackson,  84  S.  E.  100,  117  Va.  76. 

Sec.  420.    It  is  the  duty  of  the  principal  to  collect  purchase 
money  notes  on  which  commissions  depend. 

Brokers  procured  purchasers  for  a  mine,  who  offered  one- 
half  cash  and  their  unsecured  notes  for  the  balance ;  these 
terms  were  unsatisfactory  to  the  owner,  but  he  agreed  with  the 
brokers  to  sell  on  these  terms  if  they  would  wait  for  one-half 
of  their  commissions  until  the  purchase  money  notes  were  col- 
lected. Held,  that  the  owner  owed  the  brokers  the  duty  to 
make  reasonable  efforts  to  collect  the  notes  as  they  matured, 
but  the  mere  failure  to  bring  suit  on  the  notes  was  not  a  lack 


PRINCIPAL  AND  AGENT.  351 

of  diligence,  in  the  absence  of  showing  they  were  insolvent  so 
that  the  notes  could  not  be  collected  by  suit.  Glade  v.  Ford, 
131  Mo.  App.  164,  111  S.  W.  135. 

Sec.  420a.  Duty  to  collect  purchase  piice  devolves  on  seller. 
Though  a  broker's  contract  of  employment  provided  that  he 
should  not  receive  commissions  unless  the  deal  was  closed, 
and  that  the  commissions  were  payable  from  the  proceeds  of 
the  sale,  the  broker,  in  the  absence  of  a  contract  to  that  effect, 
was  not  required  to  see  that  the  purchase  price  was  paid  be- 
fore he  could  receive  commissions,  as  the  duty  to  collect  the 
price  devolved  on  the  seller,  and  not  on  the  broker.  Pinkerton 
v.  Hudson  (Ark.  Sup.  '08),  113  S.  W.  35. 

Sec.  420b.    Vendors  not  required  to  accept  payments  for  land 
by  checks. 

Vendors  under  contract  with  broker  for  the  sale  of  land, 
terms  "one-half  down,  and  the  balance  in  five  equal  annual  pay- 
ments/' can  not  be  required  to  accept  payments  by  check,  and 
they  need  not  bind  themselves  to  convey  until  this  objection  is 
removed  by  an  offer  at  the  time  of  a  different  method  of  pay- 
ment, reasonable  in  character  and  satisfactory  to  them.  Califor- 
nia Land  Security  Co.  v.  Ritchie,  180  P.  625,  —  Cal.  App.  — . 

Sec.  421.    Presumption  by  continuing  negotiations  after  revo- 
cation that  agent  acts  for  purchaser. 

Where  a  broker  is  notified  by  a  vendor  that  he  will  pay  no 
commissions,  and  thereafter  continues  the  negotiations  for  a  sale, 
it  is  presumed  that  he  is  the  agent  of  the  purchaser  and  looks  to 
him  for  his  commissions.  Wolverton  v.  Tuttle,  51  Ore.  501,  94 
P.  961. 

Sec.  421a.    One  receiving  an  inquiry  from  a  broker  as  to  the 
price  of  land  may  infer  he  is  acting  as  agent  for  another. 

Where  defendant  knew  that  plaintiff  was  a  real  estate  broker, 
he  could  infer,  upon  receiving  an  inquiry  from  plaintiff  as  to  the 
price  of  property,  that  the  latter  was  acting  as  agent  for  another 
in  seeking  to  purchase.  Rodman  v.  Manning  (Or.  Sup.  '09 ),  99 
P.  657,  1135. 


352  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

Sec.  422.  Authority  to  sell  for  specific  sum,  did  not  authorize 
part  cash  and  mortgage. 

A  broker's  authority  to  sell  land  for  a  specific  sum,  did  not 
authorize  an  agreement  to  sell  for  a  part  of  the  price  in  cash, 
the  balance  to  be  represented  by  a  mortgage  on  the  premises. 
Stengel  v.  Sargeant  (N.  J.  Ch.  '08),  68  A.  1106.  See  also 
Sees.  141,  408.  See  references  under  Sec.  307. 

Sec.  422a.    Authority  to  sell  for  specified  sum  is  for  cash  only. 

A  broker  authorized  to  sell  real  estate  for  a  specified  sum,  for 
a  commission  in  excess  of  that  sum,  has  authority  to  make  a  cash 
sale  only.  Slayback  v.  Wetzel  (Mo.  App.  '09 ),  123  S.  W.  982. 
See  also  Sec.  18. 

Sec.  422b.  Allegation  in  broker's  petition  for  finding  a  pur- 
chaser for  land  held  to  mean  either  wholly  or  partly  for 
cash. 

The  allegation  of  a  petition  in  an  action  for  commission  for 
procuring  a  purchaser  for  real  estate,  that  defendant  agreed  that 
if  plaintiff  could  procure  a  purchaser  he  would  pay  him  all  over 
$6,000  for  which  the  property  sold,  and  that  plaintiff  found  a 
purchaser  at  $6,800,  would  include  a  sale  either  wholly  or  partly 
for  cash.  McCormick  v.  Obanion,  153  S.  W.  267,  168  Mo.  App. 
606. 


PART  IV. 

COMMISSIONS  AND  COMPENSATION 
OF  AGENTS. 

353 


CHAPTER  I. 


SECTION. 

423.  Broker    entitled    to    commis- 

sions on  quantity. 

423a.  Broker  entitled  to  agreed 
commissions  and  not  lim- 
ited to  computation  on 
lesser  sale  price. 

423b.  Broker  entitled  to  commis- 
sion on  sale  of  lands  other 
than  those  listed. 

423c.  Broker's  right  to  commis- 
sions predicated  on  con- 
tractual relations  with  al- 
leged principal. 

424.  Broker     interfering     in     an- 

other's transaction. 

425.  Broker    agreeing    to    look    to 

purchaser     for    commission. 
425a.  Broker      employed      to     pur- 
chase not   entitled   to   com- 
missions from  seller. 

426.  Broker   not    entitled    on    sale 

at  less  than  price. 
426a.  Owner    selling    land    for    less 
to  broker's    customer   liable 
for  commission. 

427.  Broker   not    entitled    as    con- 

tract not  a  lease. 

427a.  Acceptance  by  broker  of 
change  of  sale  contract  to 
option  held  not  to  bind 
principal. 

428.  Immaterial    variance    in    de- 

scription   does   not   deprive. 
428a.  Wrong      description       insuffi- 
cient    to     defeat     broker's 
commissions. 


SECTION. 

428b.  What  circumstances  fall 
short  of  a  variance. 

429.  Broker     procuring     loan    for 

less   accepted   entitled. 

430.  Broker    to    procure    loan    en- 

titled on  finding  lender. 

431.  Broker  failing  to  report  find- 

ing lender  not  entitled. 

432.  Where  broker  negotiated  with 

two,  sale  to  one  bars. 

433.  Broker     not     entitled     where 

sale  void  by  statute. 

433a.  Contract  of  employment  of 
broker  void  by  law  of  state 
where  made,  void  every- 
where; also,  exceptions  to 
application  of  statute  of 
frauds. 

433b.  Statute  recited  making  bro- 
ker's contract  for  sale  of 
real  estate  void  after  one 
year. 

43  3c.  Contract  of  broker  defective 
in  trial  court  because  sig- 
nature printed,  excepted 
by  appellate  court  as  con- 
tract had  been  acted  upon. 

433d.  Where  contract  void,  notes 
collectable,  the  moral  ob- 
ligation being  sufficient 
consideration. 

434.  Principal     refusing     to     ap- 

praise broker  entitled. 

435.  Purchaser    who    knew    length 

of   lot   refusing,    bars. 


355 


356  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

SECTION.  SECTION. 

436.  Where       vendor      repudiates      440.     Broker    entitled    on    sale    by 

tender  not  necessary.  owners      to      proportionate 

437.  Broker  unsuccessful  with   F.,  commissions     on     share     of 

sale    by    owner    to    F.    and  two  tenants   in   common, 

others,  bars  commission.  440a,  Broker    entitled    to    commis- 

438.  Broker     not     entitled     where  sion  on  sale  of  land  in  pro- 

party    does   not    show    good  portion    as    payments    were 

faith.  collected. 

439.  Unless    exclusive    broker    not 

entitled  on  sale  by  another 
agent. 

Sec.  423.    Broker  entitled  to  commissions  on  quantity  con- 
tracted for,  although  less  owned. 

Where  the  terms  of  sale  are  fixed  by  the  vendor,  in  accordance 
with  which  the  broker  introduced  a  proposed  purchaser,  and  upon 
the  procurement  of  the  purchaser  the  vendor  voluntarily  reduces 
the  price  of  the  property,  or  the  quantity,  or  otherwise  changes 
the  terms  of  sale  as  proposed  to  the  broker,  so  that  a  sale  is 
made,  or  terms  or  conditions  are  offered  which  the  proposed  buyer 
is  ready  and  willing  to  accept,  the  broker  will  be  entitled  to  his 
commissions  at  the  rate  specified  in  his  agreement  with  his  prin- 
cipal. Stewart  v.  Mather,  32  Wis.  344.  Contra,  Hoefling  v. 
HamUeton,  84  Tex.  517,  19  S.  W.  689.  See  Sec.  451. 

Sec.  423a.     Broker  entitled  to  agreed  commissions  and  not 
limited  to  computation  on  lesser  sale  price. 

A  promise  to  pay  a  broker  for  selling  land  a  commission  "on 
the  price  I  may  accept  if  sold  through  your  agency,"  means  a 
commission  on  the  price  agreed  to  be  paid  for  the  property,  and 
not  only  on  the  amount  actually  paid.  Condict  v.  Cowdrey,  5  N". 
Y.  S.  187,  23  N.  Y.  St.  600,  57  N.  Y.  Super.  Ct.  66.  See  pre- 
vious section. 

Sec.  423b.    Broker  entitled  to  commissions  on  sale  of  lands 
other  than  those  listed. 

A  letter  closing  correspondence  whereby  vendor  authorized  bro- 
kers to  sell  his  lands,  stating  that  commissions  would  be  paid 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  357 

upon  all  lands  listed  in  said  letter,  but  stating  that  such  was  only 
a  partial  list  of  lands  vendor  had  to  offer,  does  not  preclude  re- 
covery of  commissions  for  the  sale  of  lands  not  listed  therein. 
M.  N.  Clark  &  Co.  v.  Monson,  166  N.  W.  576,  —  Iowa  Sup.  — . 

Sec.  423c.    Broker's  right  to  commissions  predicated  on  con- 
tractual relations  with  alleged  principal. 

A  real  estate  broker's  right  to  compensation  must  be  predicated 
on  contractual  relations  between  himself  and  his  alleged  principal. 
Ludeman  v.  English,  189  P.  531. 

Sec.  424.    Broker  interfering  in  another's  transaction  not  en- 
titled to  commissions. 

A  broker  on  being  offered  a  commission  to  find  a  purchaser 
for  certain  lands,  presented  the  matter  to  one  who  took  it  un- 
der advisement  for  a  time,  and  then,  wishing  to  signify  his 
acceptance,  sought  the  broker  at  his  office,  but  not  finding  him, 
and  learning  that  the  owner  was  at  the  office  of  a  rival  broker 
went  there,  where  the  purchase  was  completed.  Held,  that 
the  former  was  entitled  to  the  commission.  JenJcs  v.  Nobles, 
42  111.  App.  33.  See  also  See.  444. 

Sec.  425.    Broker  agreeing  to  look  to  the  purchaser  for  com- 
missions bound  by  his  election. 

Plaintiff,  a  real  estate  broker,  was  employed  by  defendant 
to  sell  or  exchange  for  him  a  farm  and  four  lots,  the  farm  at 
$5,000,  or  the  whole  at  $13,000,  and  agreed  to  pay  plaintiff 
commissions  therefor  at  the  rate  of  two  and  one-half  per  cent. ; 
a  purchaser  was  introduced  to  defendant  by  plaintiff,  and  an 
exchange  finally  agreed  on,  at  the  valuation  of  $13,000;  but 
the  defendant  insisted  that  the  purchaser  should  pay  the  plain- 
tiff's commissions,  and  the  purchaser  called  on  plaintiff  and 
told  him  that  it  had  been  agreed  between  defendant  and  him- 
self that  he  (the  purchaser)  was  to  pay  plaintiff's  commis- 
sions, and  that  the  exchange  had  been  made  at  a  valuation  of 
$5,000,  whereupon  plaintiff  agreed  to  look  to  the  purchaser 


358  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

for  his  commissions,  and  wrote  a  letter  to  defendant  to  that 
effect,  whereupon  the  exchange  was  made.  Held,  that  if  the 
defendant  acted  on  plaintiff's  letter,  and  was  guilty  of  no 
fraud,  it  would  be  immaterial  what  the  purchaser  said  to  plain- 
tiff, as,  if  the  purchaser  had  deceived  plaintiff,  defendant  was 
not  responsible  therefor.  McClave  v.  Maynard,  35  How.  Pr. 
(N.  Y.)  313.  See  also  Sec.  588. 

Sec.  425a.    Broker  employed  to  purchase  not  entitled  to  com- 
missions from  seller. 

Plaintiff,  a  real  estate  broker,  being  employed  by  B.,  a  per- 
son desirous  of  purchasing  a  residence,  to  find  for  him  such 
a  place  as  he  desired,  introduced  him  to  defendant,  who  had 
a  place  to  sell,  and  informed  defendant  that  if  B.  purchased 
the  property  defendant  would  have  to  pay  plaintiff  the  usual 
commission.  Defendant  had  negotiations  with  B.  in  regard  to 
a  sale  of  the  property,  but  failed  to  come  to  any  agreement 
as  to  terms,  and  defendant  then  sold  the  property  to  his 
brother,  who,  eleven  days  thereafter,  sold  it  to  B.  Held,  that 
in  the  absence  of  any  evidence  to  show  that  the  sale  by  de- 
fendant to  his  brother,  and  the  subsequent  conveyance  by  him 
to  B.,  was  done  to  defraud  plaintiff  of  his  commissions,  he 
could  not  recover  them  from  defendant.  It  seems  that  plain- 
tiff, having  been  employed  by  B.,  any  agreement  made  by 
plaintiff  with  defendant  for  commissions  was  void  as  a  fraud 
upon  B.,  in  the  absence  of  proof  that  B.  was  apprised  of  such 
agreement,  and  assented  thereto.  Bennett  v.  Kidder,  5  Daly 
(N.  Y.)  512.  Compare  Sees.  313,  454. 

Sec.  426.    Broker  not  entitled  to  commissions  on  contract  at 
set  price  and  sale  at  less. 

A  broker  hired  to  sell  property  at  a  certain  price  can  not  re- 
cover commissions  for  effecting  a  sale  at  a  lower  price,  and  the 
appellate  court  held  that  the  case  was  properly  taken  from  the 
jury.  Williams  v.  McGraw,  52  Mich.  480,  18  N.  W.  227;  Brown 
v.  Adams,  (R.  I.  Sup.  '08),  69  A.  601.  See  also  Sec.  558. 

Sec.  426a.    Owner  selling  land  for  less  to  broker's  customer 
liable  for  commission. 

An  owner  of  land  who  sold  directly  to  a  purchaser  found  by 
the  broker  at  a  price  less  than  that  at  which  it  was  listed  is  liable 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  359 

for  the  broker's  commissions.  Davis-Fisher  Co,  v.  Hall,  148  N". 
W.  713,  182  Mich.  574,  L.  K.  A.  1915  A,  1224;  ScJilegal  v.  Ful- 
ler, 149  P.  1118,  —  Okl.  Sup.  — . 

Sec.  427.    Broker  not  entitled  to  commissions,  as  contract  se- 
cured was  not  a  lease. 

Plaintiffs,  real  estate  brokers,  were  employed  by  defendant 
to  procure  a  lease  of  certain  real  estate  owned  by  her;  they 
negotiated  an  agreement  for  a  lease,  the  terms  of  which  she 
could  not  perform,  nor  could  she  enforce  it  against  the  other 
parties;  and  procured  her  to  execute  the  same  upon  the  assur- 
ance that  it  was  effectual.  Held,  that  an  action  was  not  main- 
tainable to  recover  commissions,  that  to  earn  the  same  they 
were  required  to  procure  a  lease  or  a  valid  agreement  for  one. 
Crombie  v.  Waldo,  137  N.  Y.  129,  32  N.  E.  1042,  33  N.  E. 
744;  Montgomery  v.  Knickerbocker,  50  N.  Y.  S.  128,  27  App. 
Div.  117;  Ward  v.  Zborowski,  63  N.  Y.  S.  219,  31  Misc.  66; 
Armstrong  v.  O'Brien,  83  Tex.  635,  19  S.  W.  268;  Hale  v. 
Kumler,  85  Fed.  161,  29  C.  C.  A.  67,  rehearing  denied  172  N. 
Y.  646 ;  Laws  &  Bradford  v.  Schmidt,  80  0.  S.  108,  88  N.  E. 
319.  See  also  Sec.  812,  and  references  under  Sec.  307. 

The  owner  of  real  estate  agreed  with  brokers  that  if  they 
would  make  a  lease  of  the  property,  in  accordance  with  her 
proposition,  she  would  pay  the  commission  stipulated.  The 
proposition  was  to  lease  perpetually,  lessees  to  have  the  privi- 
lege of  purchase  at  the  end  of  twenty  years,  and  required 
the  lessees  to  erect  a  modern,  first-class  building,  to  secure  the 
erection  of  which  they  were  to  deposit  $20,000,  and,  in  the 
event  of  failure  the  fund  so  deposited  to  go  to  the  owner,  but 
if  the  building  should  be  completed,  then  to  the  lessees,  and 
it  was  provided  that  the  proposition  should  be  binding  on  the 
payment  of  $1,000,  to  be  credited  on  the  first  quarterly  pay- 
ment of  rent.  Held,  that  the  mere  procurement  by  the  bro- 
kers of  a  party  who  accepted  the  owner's  proposition,  but 
neither  did,  nor  offered  to  do  anything  further,  the  owner 
not  having  herself  defaulted  in  any  respect,  did  not  entitle 
the  brokers  to  the  commission.  Laws  v.  Schmidt,  80  Ohio  St. 
108,  88  N.  E.  319;  Bradford  v.  Schmidt,  80  Ohio  St.  108,  88 
N.  E.  319. 


360  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

Sec.  427a.    Acceptance  of  change  of  sale  contract  to  option  by 
broker  held  not  to  bind  principal. 

Where  a  broker  authorized  to  sell  land  wrote  his  principal  that 
he  had  a  tentative  contract  on  different  terms  requiring  different 
payments,  a  reply  accepting  such  change  did  not  ratify  broker's 
act  in  making  an  option  instead  of  a  sale  contract.  Hicks  v. 
Christeson,  164  P.  395,  —  Gal.  Sup.  — . 

Sec.  428.    Immaterial  variance  in  description  did  not  deprive 
broker  of  commissions. 

Where  plaintiff  made  a  contract  by  which  he  was  to  have  the 
exclusive  right  for  twenty  days  to  effect  a  sale  of  defendant's 
farm,  and  the  contract  of  purchase  which  he  secured  described 
the  land  as  containing  so  many  acres  on  which  defendant  resided, 
lying  partly  in  one  and  partly  in  another  town  named,  and 
bounded  but  on  three  sides,  and  concluded  by  stating  that  it  was 
formerly  known  as  the  "Van  Allen  farm;"  whereas  it  is  desig- 
nated as  the  "Owen's  place"  in  defendant's  contract,  the  variance 
is  immaterial,  as  the  description  is  sufficient  to  enable  the  land 
to  be  located,  and  it  is  not  void  for  uncertainty,  and  the  broker  is 
entitled  to  commissions.  Schultz  v.  Griffin,  8  N.  Y.  S.  E.  332, 
reversed  121  N.  Y.  294,  24  N.  E.  480;  Gifford  v.  Straub,  179  N. 
W.  600,  —  Wis.  Sup.  — .  See  also  Sees.  59,  428a. 
Sec.  428a.  Wrong  description  insufficient  to  defeat  broker's 
right  to  commissions. 

An  owner  of  land  listed  it  with  a  real  estate  broker  to  be 
sold  within  a  given  time,  at  a  stated  price,  agreeing  to  pay 
the  broker  ten  per  cent,  if  he  sold  it,  and  five  per  cent,  if  the 
owner  sold  it,  which  he  did  within  the  specified  time.  It  ap- 
peared that  the  number  of  the  lot  was  by  mutual  mistake  er- 
roneously stated  in  the  contract,  but  the  land  was  otherwise 
clearly  described.  Held,  that  the  mere  mistake  as  to  the  num- 
ber of  the  lot  was  insufficient  to  defeat  a  recovery  by  plaintiff. 
Tyler  v.  Justice,  120  Ga.  879,  48  S.  E.  328.  See  also  Sees.  59, 
428. 

Sec.  428b.    What  circumstances  fell  short  of  a  variance. 

Where,  in  an  action  by  a  broker  for  commissions,  the  com- 
plaint alleged  that  he  was  employed  to  procure  a  purchaser 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  361 

of  real  estate  for  a  commission,  on  condition  that  plaintiff 
would  at  once  advise  the  purchaser  to  give  the  seller  a  con- 
tract for  the  construction  of  a  building  on  the  premises,  but 
that,  unless  the  seller  got  such  contract  the  plaintiff  should 
receive  nothing,  and  that  the  purchaser  awarded  to  the  owner 
such  a  contract,  and  the  broker  testified  that  the  owner  in- 
formed him  that,  if  he  induced  the  purchaser  to  award  to  the 
owner  a  contract  to  erect  a  building,  a  specified  sum  would  be 
paid  as  commissions,  otherwise  no  commission  would  be  paid, 
the  subsequent  testimony  of  the  broker  that  nothing  was  said 
as  to  his  advising  the  purchaser  to  build,  did  not  create  a 
variance  between  the  pleading  and  the  proof,  but,  at  most, 
only  varied  the  terms  of  the  contract  relating  to  the  same 
transaction,  and  the  owner  was  not  misled  thereby.  Geiger  v. 
Riser  (Colo.  Sup.  '10),  107  P.  267. 

Sec.  429.    Broker  securing  loon  for  a  less  amount,  which  isi 
accepted,  entitled  to  commissions. 

In  an  action  upon  an  agreement  to  pay  a  broker  a  commission 
for  obtaining  a  loan,  it  appeared  that  a  loan  for  a  less  amount 
was  obtained,  and  at  first  accepted,  but  subsequently  declined  by 
the  principal  as  being  insufficient  for  his  purpose.  Held,  that  the 
service  had  been  rendered  and  the  commission  was  due,  in  the 
absence  of  any  usage  among  New  York  brokers  to  receive  no  com- 
pensation unless  the  matter  was  consummated.  Van  Lieu  v. 
Byrnes,  1  Hilton  (N.  Y.),  133;  Hutchings  v.  Binford,  236  S.  W. 
537,  —  Tex.  Civ.  App.  — .  See  also  Sec.  24. 

Sec.  430.    Broker  to  procure  a  loan  entitled  to  commissions  on 

finding  a  lender. 

A  broker  employed  to  effect  a  loan  is  entitled  to  his  commis- 
sions when  he  has  found  a  lender  who  has  the  money  and  who 
approves  of  the  security,  unless  his  rights  are  varied  by  special 
contract;  there  is  always  an  implied  condition  that  the  bor- 
rower will  show  a  good  title.  Phister  v.  Gave,  48  Mo.  App. 
455;  Calvin  Philip  &  Co.  v.  Laylow  (Wash.  Sup.  '09),  104 
P.  610;  Rockwell  v.  Hurst,  13  N.  Y.  S.  290;  Budd  v.  Zoller, 
52  Mo.  238;  Steele  v.  Lippman,  115  N.  Y.  S.  1099;  Steele  v. 
Eumore,  117  N.  Y.  S.  189. 


362  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  431.    Broker  failing  to  report  finding  lender  not  entitled 

to  commissions. 

Where  an  application  for  a  loan  is  made  to  a  broker,  who 
secures  a  party  willing  to  make  the  loan,  but  does  not  so  no- 
tify the  applicant,  and  after  the  time  has  elapsed  within  which 
the  broker  was  to  place  the  loan,  the  applicant,  without  knowl- 
edge of  the  steps  taken  by  the  broker,  secures  a  loan  from  the 
same  person  with  whom  the  latter  had  arranged  to  place  it, 
the  broker  is  not  entitled  to  commissions.  Biddison  v.  John- 
son, 50  111.  App.  173.  See  also  Sees.  235,  312,  471. 

Sec.  432.  Where  broker  negotiated  with  two  jointly,  sale  by 
owner  to  one  bars  commissions. 

Plaintiff  employed  as  a  broker  by  defendant  to  sell  certain 
real  estate,  but  not  having  the  exclusive  right  to  sell,  carried 
on  negotiations  with  two  persons  for  a  purchase  by  them  to- 
gether, but  did  not  succeed  in  effecting  a  sale;  afterward,  one 
of  such  persons  offered  defendant  the  same  price  for  which 
plaintiff  was  authorized  to  sell,  which  defendant  accepted;  it 
did  not  appear  that  plaintiff  had  had  negotiations  with  such 
person  for  a  separate  purchase  by  him,  or  that  such  offer  by 
him  was  the  result  of  his  negotiations  with  plaintiff.  Held, 
that  plaintiff  could  not  recover  commissions  on  the  sale.  Arm- 
strong v.  Wann,  29  Minn.  126,  12  N.  W.  345 ;  Nadler  v.  Men- 
schel,  110  N.  Y.  S.  384.  See  also  Sec.  437. 

Sec.  433.  Broker  not  entitled  to  commissions  where  contract 
void  by  statute  of  frauds. 

A  real  estate  broker  is  not  entitled  to  commissions,  where 
a  sale  to  his  customer  is  not  consummated,  and  the  executory 
contract  of  sale  is  not  binding  under  the  statute  of  frauds. 
Wilson  v.  Mason,  158  111.  304,  42  N.  E.  134.  See  also  Sec.  602. 

A  real  estate  agent  is  not  entitled  to  commissions  on  an  in- 
valid sale.  Vollcer  v.  Fisk  (N.  J.  Eq.  '09),  72  A.  1011)  ;  Voice r 
v.  Fisk,  72  A.  1011,  75  N.  J.  Eq.  497;  Pugli  v.  Solein,  180  P. 
930,  —  Or.  Sup.  — ;  Kuh  v.  LemeTce,  180  P.  889,  --  Wash.  Sup. 
-;  Holland  v.  Johnson,  174  N.  W.  874,  —  N.  D.  Sup.  — ;  Bryan 
v.  Mayo,  124  N.  E.  873,  —  Ind.  Sup.  — ;  Pur  Ay  v.  Law,  180  X. 
W.  251,  —  Mich.  Sup.  — .  Compare  Sec.  454. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  363 

Sec.  433a.  Contract  of  employment  of  broker  void  by  law  of 
state  where  made,  void  everywhere;  also  exceptions  to 
application  of  statute  of  frauds. 

Where  a  real  estate  broker's  employment  contract  is  void  in  the 
state  where  made,  because  not  signed  by  both  parties,  it  is  void 
everywhere,  and  no  subsequent  agreement  or  act  based  on  it  can 
give  it  validity.  Osborne  v.  Dannatt,  149  N.  W.  913,  167  Iowa, 
615. 

An  agreement  that  in  case  of  sale  to  S,  in  accordance  with 
contract  of  a  certain  date  entered  into  between  him  and  C,  of  578 
acres  of  land,  located  in  a  certain  county,  there  would  be  due, 
etc.,  was,  in  effect,  a  promise  to  pay  for  past  services,  not  con- 
trolled by  Rem.  Code  1915,  Sec.  5289,  excepting  agreements  au- 
thorizing brokers  to  sell  realty,  if  in  writing.  Henneberg  v.  Cook, 
175  P.  313,  —  Wash.  Sup.  — . 

Under  Eev.  Stat.  1913,  Sec.  2628,  providing  that  every  contract 
of  brokerage  shall  be  void  unless  in  writing,  contracts  not  in 
writing  are  not  "void,"  but  merely  "voidable"  or  unenforceable 
for  want  of  evidence  which  the  statute  requires.  Miles  v.  Lampe, 
168  N.  W.  640,  --  Neb.  Sup.  — . 

Sec.  433b.  Statute  recited  making  broker's  contract  for  the 
sale  of  real  estate  void  after  one  year. 

Laws  1911,  c.  157,  providing  that  contract  making  one  an  agent 
for  the  sale  of  real  estate  shall  become  void  after  one  year,  unless 
the  time  of  termination  is  fixed,  rendered  a  contract  for  the  ex- 
clusive sale  of  lots,  without  limitation  as  to  time,  absolutely  void 
after  one  year,  though  the  owner  was  not  aware  of  the  invalidity 
until  later.  Odlin  v.  McAllister,,  90  A.  1086,  112  Me.  89. 

Sec.  433c.  Contract  of  broker  held  defective  by  trial  court 
because  of  printed  signature  excepted  by  appellate  court 
as  contract  had  been  acted  upon. 

Allegation  of  a  broker's  employment  contract  is  not  sufficient 
under  Eev.  Stat.  1913,  Sec.  2628,  because  signature  of  the  broker 
was  printed;  held  error,  where  he  had  acted  on  the  contract. 
Berryman  v.  Childs,  153  N.  W.  486,  98  Neb.  450. 


364  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  433d.  Where  contract  void,  notes  collectible,  the  moral 
obligation  being  sufficient  consideration. 

Though  the  oral  promise  to  pay  a  commission  for  effecting  an 
exchange  of  land  was  unenforceable,  being  within  Comp.  Laws 
1915,  Sec.  11981,  a  note  given  by  the  landowner  for  the  amount 
of  such  commission  is  enforceable,  as  between  the  parties,  the 
moral  obligation  being  sufficient  consideration.  Bagaeff  v.  ProJco- 
piTe,  180  N.  W.  427,  —  Mich.  Sup.'  — . 

Sec.  434.    Principal  capriciously  refusing  to  appraise  can  not 

deprive  broker  of  commissions. 

Where  a  broker  is  employed  to  negotiate  for  a  house  his 
compensation  to  be  paid  for  in  diamonds,  no  particular  dia- 
monds being  particularly  identified,  and  the  broker  finds  a 
house  and  the  principals  agree  as  to  the  price,  the  broker  can 
not  be  deprived  of  his  compensation  by  his  employer's  capri- 
cious refusal  to  agree  to  any  mode  of  appraising  the  diamonds. 
West  v.  Lynch,  1  City  Court  R.  (N.  Y.)  225.  See  also  Sec.  454. 

Sec.  435.  Where  purchaser  refusing  to  take,  knew  the  real 
length  of  lot,  broker  barred  commissions. 

In  an  action  by  a  real  estate  broker  to  recover  commissions 
earned,  on  the  ground  that  the  purchaser  refuses  to  take  the 
property  on  account  of  false  representations  of  the  length  of 
the  lot,  a  verdict  for  defendant  is  clearly  right,  where  it  ap- 
pears that  the  purchaser  knew  the  exact  length  of  the  lot  be- 
fore he  agreed  to  purchase  it.  Sloman  v.  Bodwell,  24  Neb. 
790,  40  N.  W.  321;  Bruce  v.  Meserve,  117  N.  E.  683,  —  Mass. 
Sup.  — .  See  also  Sees.  183,  451. 

A  broker  familiar  with  a  lot  was  employed  to  procure  a  pur- 
chaser. The  owner  stated  to  the  broker  that  the  lot  had  a  front- 
age of  168  feet  on  the  street;  a  purchaser  procured  by  the  broker 
refused  to  complete  the  purchase  because  the  frontage  was  only 
165  feet.  Held,  that  the  broker  was  not  entitled  to  commissions, 
since  he  was  employed  to  procure  a  purchaser  for  the  lot  as  it 
was,  and  the  fact  that  the  owner  told  the  proposed  purchaser 
during  the  negotiations  that  the  frontage  was  168  feet,  did  not 
affect  the  contract  of  brokerage.  Eeough  v.  Meyer,  111  N.  Y.  S. 
1,127  App.  Div.  273.  See  also  Sec.  451. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  365 

Sec.  436.    Where  vendor  signifies  repudiation  of  contract  ten- 
der not  necessary  for  broker  to  recover  commissions. 

Where  a  contract  of  sale  has  been  revudiated  by  the  vendor, 
proof  of  tender  of  performance  by  the  vendee  is  not  necessary, 
in  an  action  by  the  broker  against  the  vendor  for  his  com- 
missions on  the  sale,  when  it  is  shown  that  it  would  not  have 
been  of  any  avail  if  made.  Harwood  v.  Diemer,  41  Mo.  App. 
48;  Smith  v.  Tatum,  79  S.  E.  775,  140  Ga.  719;  Rothbaum  v. 
Solomon,  187  111.  App.  338;  Parker  v.  Seattle  Land  Co.,  165  P. 
1086,  —  Wash.  Sup.  — ;  Merzoian  v.  Kludgian,  191  P.  673,  — 
Cal.  Sup.  — .  See  also  Sec.  625. 

Sec.  437.    Where  broker  unsuccessfully  negotiated  with  P,  sale 
by  owner  to  F  and  others  bars  commissions  to  broker. 

Where  a  broker's  contract  for  the  sale  of  land  required  not 
only  the  finding  of  a  purchaser  but  a  sale  to  him  by  the  bro- 
ker, and  it  was  specially  agreed  that  no  commission  should  be 
paid  unless  a  sale  was  actually  made  by  the  broker,  he  could 
not  recover  commissions  for  a  sale  made  to  F.  and  others  by 
the  owner,  because  he  had  submitted  the  land  to  F.  alone,  who 
was  unwilling  to  purchase  on  the  terms  fixed  by  the  owner. 
Burch  v.  Hester  &  Lawhorn  (Tex.  Civ.  App.  '08),  109  S.  W. 
399;  English  v.  Wm.  George  Realty  Co.  (Tex.  Civ.  App.  '09), 
117  S.  W.  996.  See  also  Sec.  432. 

Sec.  438.    Broker  not  entitled  to  commissions  where  party  to 
make  exchange  does  not  show  good  faith. 

A  contract  of  exchange  negotiated  by  a  broker,  incompletely 
executed  by  the  broker's  principals,  does  not  show  willingness 
to  perform  by  the  alleged  purchaser,  where  the  form  of  the 
contract  and  the  whole  of  the  signatures  thereto  show  that 
some  of  the  conditions  upon  which  the  purchaser  insisted  could 
not  be  complied  with.  Schulte  v.  Meehan,  133  111.  App.  491. 

See  also  Sec.  195. 

Sec.  439.    Unless  broker  has  exclusive  agency  not  entitled  to 
commissions  on  sale  by  another  agent. 

A  broker  who  is  unsuccessful  in  effecting  a  transaction  in 
behalf  of  the  principal  is  not  entitled  to  commissions  upon 
the  success  of  another  broker,  unless  the  principal  gives  him 


366  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

an  exclusive  agency  or  promises  to  pay  him  a  commission  even 
though  another  agent  is  successful.  Long  v.  Herr,  10  Colo. 
380,  15  P.  802;  Gain  v.  Hess,  102  Iowa,  140,  71  N.  W.  218; 
Letshaw  v.  Moore,  53  Kan.  234,  36  P.  342;  Walton  v.  N.  0., 
etc.,  R.  Co.,  23  La.  Ann.  398;  Ward  v.  Fletcher,  124  Mass. 
224;  Danville  v.  Comstrock,  110  Mich.  693,  69  N.  W.  79; 
Thuner  v.  Kanter,  102  Mich.  59,  60  N.  W.  299;  Emberson  v. 
Deane,  46  How.  Pr.  236;  Owens  v.  Wehrle,  14  Pa.  Super.  Ct. 
536 ;  Powell  v.  Anderson,  15  Daly,  219,  4  N.  Y.  S.  706 ;  Wilson 
v.  Alexander  (Tex.  Sup.  '92),  18  S.  W.  1057;  Hennings  v. 
Parsons,  108  Va.  1,  61  S.  E.  866.  See  also  Sec.  445. 

Sec.  440.    Broker  entitled  on  sale  by  owners  to  proportionate 

commissions  on  share  of  two  tenants  in  common. 
Where  a  broker  had  the  exclusive  control  of  property  for 
the  purpose  of  sale  so  far  as  two  of  the  several  tenants  in 
common  could  confer  it,  and  was  attempting  to  sell  when  the 
owners  sold,  he  can  recover  a  commission  on  the  two  tenants' 
share  of  the  purchase  money.  Goldsmith  v.  Case,  80  S.  C.  341, 
61  S.  B.  555. 

Sec.  440a.    Broker  entitled  to  commission  on  sale  of  land  in 
proportion  as  payments  were  collected. 

Where  defendants  agreed  to  pay  plaintiffs  as  a  commission  for 
securing  a  contract  for  defendants,  all  above  a  specified  price,  the 
commission  to  be  paid  "in  proportion  as  we  receive  the  money," 
plaintiffs  were  not  required  to  wait  until  defendants  had  received 
payment  of  the  entire  contract  price,  but  were  entitled  to  be  paid 
their  proportion  of  any  money  which  the  defendants  received 
upon  the  contracts.  Cooper  v.  Midland  Metal  Co.,  56  Pa.  Super. 
Ct.  485. 


CHAPTER  II. 

SECTION.  SECTION. 

441.  Broker   preventing   competi-       444.     Interference      by      breaking 

tive  bidding  not  entitled  into   negotiations   started 

to  commissions.  by  another  agent. 

442.  Broker   cannot   charge    com-       445.     The    first    broker    who    sun- 

missions      against     bene-  ceeds    is    entitled    to   the 

ficiary.  commission. 

443.  Volunteers,  446.     Broker  who  was  the  procur- 

ing cause   of   the   sale   is 
entitled  to  compensation. 

Sec.  441.     Broker  preventing  competitive  bidding  not  entitled 

to  commissions. 

A  broker  employed  by  a  guardian  of  an  incompetent  person 
to  sell  real  estate  is  not  entitled  to  commissions  if  he  offered 
money  to  another  bidder  to  induce  him  to  refrain  from  bid- 
ding on  the  same  against  the  purchaser  procured  by  the  bro- 
ker, and  without  the  guardian's  knowledge  represented  the 
purchaser,  and  worked  to  secure  the  real  estate  for  him  at  the 
lowest  possible  price.  Trees  v.  Millikin  (Ind.  App.  '08),  85 
N.  E.  123.  See  also  Sec.  217. 

Sec.  442.     Broker  can  not  charge  commissions  against  benefi- 
ciary. 

Recovery  of  a  real  estate  broker's  commissions  for  procur- 
ing a  purchaser  can  not  be  charged  against  one  who  merely 
had  a  beneficial  interest  in  the  property  without  authority  to 
sell,  and  who,  so  far  as  she  acted  in  negotiations  resulting  in 
the  sale,  referred  the  broker  to  others  who  alone  could  convey. 
Kirivan  v.  Pizer,  109  N.  Y.  S.  739. 

Sec.  443.    Volunteers. 

A  mere  volunteer,  though  he  brings  the  parties  together  and 
is  the  efficient  means  of  procuring  a  sale,  a  lease,  or  an  ex- 

367 


368  AMERICAN  LAW   BEAL   ESTATE   AGENCY. 


change  of  property,  is  not  entitled  to  a  commission.  Albert 
Booth  Cohn  v.  Lee,  117  N.  Y.  S.  550;  Viley  v.  Pettit,  96  Ky. 
576,  16  Ky.  L.  R.  650,  29  S.  W.  438;  Merrill  v.  Latham,  8 
Colo.  App.  263,  45  P.  524;  Witherbee  v.  Walker,  42  Colo.  1, 
93  P.  1118;  Keener  v.  Harrod,  2  Md.  63;  Fordtran  v.  Stower, 
113  S.  W.  631  (Tex.  C.  A.  '08)  ;  Ballentine  v.  Mercer,  130  Mo. 
App.  605,  109  S.  W.  1037;  Sharp  v.  Hoopes  (N.  J.  Sup.  '06), 
64  A.  989 ;  McClosky  v.  Thompson,  56  N.  Y.  S.  1076,  26  Misc. 
735;  Tinkham  v.  Knox,  18  N.  Y.  S.  433;  Henderson  v.  Sonne- 
baum,  30  Pa.  Sup.  Ct.  182;  Samuel  v.  Luckenbach,  205  Pa.  St. 
428,  54  A.  1091.  Contra,  Kinder  v.  Pope,  106  Mo.  App.  536, 
80  S.  W.  315.  See  also  Sec.  466. 

No  recovery  can  be  had  for  services  volunteered  upon  the 
chance  of  obtaining  future  employment.  Such  services  are 
Here  gratuities.  Mechem  on  Ag.  Sec.  600. 

In  the  absence  of  a  special  contract,  finding  a  purchaser  is 
not  enough  to  entitle  to  a  commission  where  no  sale  was  made. 
Haase  v.  Schneider,  98  N.  Y.  S.  587,  112  App.  Div.  336 ;  Pierce 
v.  Thomas,  4  E.  D.  Smith,  354;  Harris  v.  Reynolds  (N.  D.  Sup. 
'07),  114  N.  "W.  369.  Nor  does  receiving  money  as  part  pay- 
ment on  a  contract  of  sale  of  real  estate,  and  giving  the  broker 
a  receipt  therefor,  make  him  the  recipient's  agent.  Appeal  of 
Jacquett,  3  Walk.  (Pa.),  13.  See  also  Sec.  399. 

Though  a  mere  volunteer  can  not  recover  for  services  rendered 
without  a  contract  of  employment,  yet  if  the  owner  of  property 
knows  that  the  alleged  volunteer  is  a  broker,  and  is  trying  to  ef- 
fect a  sale,  and  expects  compensation,  and  it  appears  that  the 
owner  encouraged  the  broker  and  led  him  to  believe  that  he  would 
be  compensated,  a  contract  will  be  implied,  if  a  sale  is  consum- 
mated by  the  broker.  Knott  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  172 
111.  App.  550. 

Where  an  owner  did  not  ask  the  real  estate  agent's  assistance 
in  finding  a  purchaser  for  land,  and  refused  his  request  to  lease 
the  land,  a  contract  of  employment  could  not  be  inferred  from 
the  owner's  knowledge  that  the  agent  was  about  to  take  a  cus- 
tomer and  show  the  farm  with  a  view  of  making  an  offer.  Walsh 
&  Griffen  Co.  v.  Collenbaugh,,  130  N".  W.  792,  150  Iowa,  692. 

Negotiations  by  a  broker  employed  to  procure  a  purchaser  with 
agents  of  one  who  subsequently  purchased  the  property  are  not 


COMMISSION  AND   COMPENSATION   OF   AGENTS.  369 

equivalent  to  negotiations  with  the  purchaser,  where  the  agent 
had  no  authority  to  represent  or  act  for  the  purchaser.  Haase  v. 
UHman,  131  N.  Y.  Sup.  1050,  148  App.  Div.  40. 

Sec.  444.    Interference  by  breaking  into  negotiations  started 
by  another  agent. 

A  broker  interfering  with  another's  transaction  is  not  en- 
titled to  a  commission.  Reynolds  v.  Tompkins,  23  W.  Va. 
229;  Jenks  v.  Nobles,  42  111.  App.  33.  Where  a  broker  to  sell 
advertises  the  property  and  shows  it  to  a  person,  and  another 
broker  buys  the  property  and  conveys  it  to  that  person,  the 
first  broker  is  entitled  to  recover  commissions.  Elemendorf  v. 
Golden,  37  Wash.  664,  80  P.  264. 

Where  a  broker,  through  a  letter  improperly  reaching  him, 
obtains  information  and  directs  the  seeker  to  the  owner,  he  is 
not  entitled  to  commissions  on  an  exchange  of  properties  af- 
terwards effected.  Hamilton  v.  Gillander,  49  N.  Y.  S.  663, 
26  App.  Div.  156.  Where  a  broker,  through  a  mistake  in 
telephoning  the  owner,  telephoned  another  broker  bearing  the 
same  name,  who  thereupon  effected  a  sale,  the  latter  was  not 
entitled  to  commissions.  Shapiro  v.  Shapiro,  103  N.  Y.  S.  305, 
117  App.  Div.  817.  Where  a  broker  was  negotiating  with  a 
customer  whom  he  introduced  to  the  owner,  and  the  latter  told 
the  customer  he  could  buy  cheaper  through  another  agency, 
and  a  sale  was  effected  through  the  latter,  the  former  agent 
was  entitled  to  the  commission.  Gilmore  v.  Freshaur,  126  Mo. 
App.  299,  102  S.  W.  1107. 

A  broker  who  fails  to  procure  a  purchaser  on  the  terms  pro- 
posed and  another  interferes  and  sells  on  different  terms,  or 
at  the  same  price,  is  not  entitled  to  commissions.  Carlson  v. 
Nathan,  43  111.  App.  364;  Arm.es  v.  Cameron,  19  D.  C.  435; 
Mears  v.  Stone,  44  111.  App.  444 ;  Tinsley  v.  Scott,  69  111.  App. 
352;  Livezy  v.  Miller,  61  Md.  336;  Growningshield  v.  Foster, 
169  Mass.  237,  47  N.  E.  879 ;  Wolff  v.  Rosenberg,  67  Mo.  App. 
403;  Northcupp  v.  Diggs,  128  Mo.  App.  217,  106  S.  W. 
1123;  Chandler  v.  Button,  5  Daly  (N.  Y.),  112;  Powell  v. 
Anderson,  15  Daly,  219,  4  N.  Y.  S.  706;  Holly  v.  Townsend, 
2  Hilt.  (N.  Y.)  34;  De  Zavola  v.  Rozaliner,  84  N.  Y.  S.  969; 
Friedman  v.  Havemeyer,  56  N.  Y.  S.  97,  37  App.  Div.  518; 


370  AMERICAN   LAW   REAL   ESTATE    AGENCY. 

Felman  v.  O'Brien,  51  N.  Y.  S.  309,  23  Misc.  341;  Powell  v. 
Lamb,  1  N.  Y.  S.  431 ;  Eae  v.  Kane,  106  N.  Y.  S.  47,  121  App. 
Div.  494;  Land  Mtge.  Bk.  v.  Hargis  (Texas  Civ.  App.  '02),  70 
S.  W.  352. 

Where  a  broker  put  his  principal  into  communication  with 
a  prospective  purchaser,  who  proposed  making  a  proposition, 
but  later  bought  the  property  through  another  agent  at  a 
slightly  reduced  price,  the  first  agent  having  set  on  foot  in- 
quiries and  negotiations  that  culminated  in  a  sale,  was  en- 
titled to  the  commissions.  Cunliff  v.  Hansmann,  97  Mo.  App. 
467,  71  S.  W.  368;  Shinn  v.  Evans,  37  App.  D.  C.  304.  Com- 
pare Sec.  290. 

A  broker  is  entitled  to  commissions  where  the  principal  inter- 
feres with  the  customer  and  concludes  the  transaction  himself. 
William^  v.  Bishop,  11  Colo.  App.  378,  53  P.  239. 

A  broker  who  finds  a  purchaser  and  negotiates  with  him  to 
sell  the  land,  and  when  the  sale  is  nearly  completed,  another 
broker  meets  the  customer,  who  tells  him  of  the  offer  made  by 
the  first  broker,  and  with  full  knowledge  of  the  first  broker's 
negotiations  the  second  broker  sells  the  property  for  a  less  sum 
to  the  customer,  and  the  owner,  ignorant  of  the  first  broker's 
negotiations,  concludes  the  transaction,  the  owner  is  liable  for 
commissions  to  the  first  broker.  Reynolds  v.  Tompkins,  23  W. 
Va.  229 ;  Lewis  v.  McDonald,  83  Neb.  694,  120  N.  W.  207.  See 
also  Sec.  446. 

The  principal  can  not  interfere  with  negotiations  started  by 
the  broker,  revoke  his  authority,  and  sell  the  land  to  his  cus- 
tomer, or  through  another  broker,  and  escape  liability  for  com- 
missions to  the  first  broker,  the  customer  not  having  abandoned 
the  idea  of  purchasing.  Day  v.  Porter,  161  111.  235,  43  N.  E. 
.1073 ;  Oillet  v.  Corum,  1  Kan.  156 ;  Corning  v.  Calvert,  2  Hilt. 
(N.  Y.)  56;  Budd  v.  Z oiler,  52  Mo.  238;  Newton  v.  Conness 
(Tex.  Civ.  App.  '08),  106  S.  W.  892. 

Sec.  445.     The  first  broker  who  succeeds  is  entitled  to  the  com- 
mission. 

"Where  two  or  more  brokers  are  employed,  ordinarily  the 
first  who  succeeds  in  actually  producing  a  purchaser  and  con- 
summating a  sale  is  entitled  to  full  commissions.  Whewell  v. 


371 

McLernon  Realty  &  Const.  Co.,  120  N.  Y.  S.  72;  Daniels  v. 
Columbia  H.  Land  Co.,  9  App.  Gas.  (D.  C.),  483;  O'Toole  v. 
•Dolan,  129  Cal.  471,  62  P.  30;  Glenn  v.  Davidson,  37  Md.  365; 
McCan  v.  Bailey,  60  Mo.  App.  456;  Jennings  v.  Trummer,  52 
Ore.  149;  96  P.  874;  Glasscock  v.  Vanfleet,  100  Tenn.  603, 
46  S.  W.  449;  Yarborough  v.  Creager  (Tex.  Civ.  App.  '03), 
77  S.  W.  645;  Osier  v.  Moore,  8  Brit.  Col.  115;  Frinck  v.  Gil- 
bert (Wash.  Sup.  '09),  101  P.  1088;  Eorton  <&  Co.  v.  Beall,  171 
S.  W.  894,  116  Ark.  273;  Idelson  v.  Robinson,  150  P.  322,  27 
Colo.  App.  507;  Thorpe  v.  Cameron-Schroth  Co.,  191  111.  App. 
455 ;  Hieronymus  v.  Atterbury,  137  S.  W.  617,  156  Mo.  App.  612 ; 
Bellis  v.  Hann  &  Kendall,  157  S.  W.  427,  —  Tex.  Civ.  App.  — ; 
Hennings  v.  Parsons,  61  S.  E.  866,  108  Va.  1,  15  Ann.  Gas.  765; 
DalJce  v.  Sivyer,  105  P.  1031,  56  Wash.  462,  27  L.  E.  A.  (X.  S.), 
195;  Starts  v.  Springgate,  167  K  W.  221,  L.  R.  A.  1918  D,  728. 
Compare  Sec.  454. 

Where  several  brokers  attempted  to  secure  a  loan  for  defendant, 
who,  in  good  faith,  paid  the  broker  who  produced  the  party  mak- 
ing the  loan,  defendant  was  not  liable  to  others,  and  was  not  re- 
quired to  make  inquiry  as  to  which  broker  was  the  procuring 
cause  of  effecting  it.  Brooks  v.  Geo.  Q.  Cannon  Ass'n,  178  P. 
589,  —  Utah  Sup.  — . 

In  some  jurisdictions  the  first  broker  who  brings  the  parties 
together  and  induces  the  seller  and  the  purchaser  to  enter  into 
the  contract,  is  entitled  to  the  commission.  Higgins  v.  Miller, 
109  Ky.  209,  58  S.  W.  580,  22  Ky.  L.  R.  702 ;  Baler  v.  Thomas, 
33  N.  Y.  S.  613,  12  Misc.  432;  De  Zavola  v.  Rozaliner,  84  N. 
Y.  S.  969.  Dalke  v.  Siryer  (Wash.  Sup.  '09),  105  P.  1031.  See 
Sec.  608. 

Where  property  is  placed  with  several  brokers,  the  first  who 
procures  a  contract  of  sale  and  obtains  part  payment  of  the 
purchase  money,  is  entitled  to  the  commission.  Eggleston  v. 
Austin,  27  Kan.  245;  Stewart  v.  Woodward,  7  Kan.  App.  633, 
53  P.  148;  O'Toole  v.  Dolan,  129  Cal.  471,  62  P.  30;  Livezy  v. 
Miller,  61  Md.  336;  McCann  v.  Bailey,  60  Mo.  App.  456;  Yar- 
borough  v.  Creager  (Tex.  Civ.  App.  '03),  77  S.  W.  645;  Bray  v. 
Chandler,  18  C.  B.  (Eng.),  718,  86  E.  C.  L.  718;  Murray  v. 
Curry,  7  C.  &  P.  (Eng.),  584,  32  E.  C.  L.  771.  Compare  Sec. 
608. 


372  AMEEICAN   LAW   EEAL   ESTATE   AGENCY. 

Where  property  is  placed  with  a  real  estate  agent  for  sale 
and  a  sale  is  brought  about  through  his  agency,  he  is  entitled 
to  his  commissions,  even  though  the  first  negotiations  are  con- 
ducted without  his  knowledge,  and  the  owner,  in  order  to  make 
the  sale  is  compelled  to  vary  the  original  price  and  terms. 
Barton  v.  Rogers,  84  111.  App.  49;  McGuire  v.  Carlam,  61  111. 
App.  295 ;  Jenks  v.  Nobles,  42  111.  App.  33 ;  Dowling  v.  Merrift* 
165  Mass.  491,  43  N.  E.  295;  Smith  v.  Truitt,  107  Mo.  App. 
1,  80  S.  W.  686 ;  Hogan  v.  Slade,  98  Mo.  App.  44,  71  S.  W. 
1104;  Wright  v.  Brown,  68  Mo.  App.  577;  Brennan  v.  Roach, 
47  Mo.  App.  290;  Gibson's  Est.,  3  Pa.  Dist.  147,  14  Pa.  Co. 
Ct.  241 ;  Shipman  v.  Freeh,  1  N.  Y.  S.  67. 

Where  the  purchaser  begins  negotiations  for  the  purchase 
of  certain  property  through  an  agent  and  completes  through 
other  agents  by  direct  negotiations,  without  the  knowledge  of 
the  first  broker,  can  not  deprive  the  latter  of  his  right  to  com- 
missions. Crowe  v.  Miss.  Valley  Trust  Co.,  85  Mo.  App.  601. 
See  also  Sec.  454. 

A  broker  authorized  to  purchase,  who  made  active  efforts,  but 
another  first  procured  a  satisfactory  offer,  the  first  broker  was 
not  entitled  to  a  commission.  Freeman  v.  Polstein,  97  N.  Y.  S. 
1032,  49  Misc.  644.  Compare  Sec.  454. 

One  who  does  not  himself  produce  the  purchaser,  but  who  in- 
troduces to  the  seller,  as  a  prospective  purchaser,  one  who,  acting 
under  an  independent  brokerage  arrangement  with  the  owner, 
makes  a  sale,  the  first  broker  is  not  entitled  to  commissions.  Peek 
v.  Slifer,  122  111.  App.  21;  Latshaw  v.  Moore,  53  Kan.  234. 
Compare  Sec.  454. 

Where  a  broker  having  property  for  sale  called  the  attention 
of  another  broker  thereto,  and  he  sold,  the  first  was  not  entitled 
to  a  commission.  Shapiro  v.  Shapiro,  103  N.  Y.  S.  305,  117  App. 
Div.  817;  Brannen  v.  Pool,  218  S.  W.  186,  —  Ark  Sup.  — . 

A  sale  made  by  the  second  agent  to  a  client  of  the  first,  but 
at  a  lower  price,  did  not  entitle  the  first  to  a  commission.  Ames 
v.  Cameron,  19  D.  C.  435;  Mears  v.  Stone,  44  111.  App.  444; 
Wolff  v.  Rosenberg,  67  Mo.  App.  403;  Friedman  v.  Havemeyer, 
56  N.  Y.  S.  97,  37  App.  Div.  518 ;  Felman  v.  O'Brien,  51  1ST.  Y. 
S.  309,  23  Misc.  341;  Powell  v.  Anderson,  15  Daly  (N.  Y.),  219, 


COMMISSION   AND   COMPENSATION   OF   AGENTS.  373 

4  1ST.  Y.  S.  706;  Hendricks  v.  Daniels,  19  N.  Y.  S.  414;  Powell 
v.  Lamb,  1  N.  Y.  S.  431 ;  Byers  v.  Williams,  141  N.  W.  571,  175 
Mich.  385.  Compare  Sec.  454. 

Defendant  listed  land  with  plaintiff  and  other  brokers  for 
sale.  Plaintiff  communicated  an  "offer"  which  defendant  ac- 
cepted by  wire,  but  immediately  rescinded  on  receiving  a  tele- 
gram from  the  other  brokers  stating  that  they  had  "sold"  the 
land.  Held,  that  plaintiff  is  not  entitled  to  recover.  Hieronymus 
v.  Atterbury,  137  S.  W.  617,  156  Mo.  App.  612. 

Defendant  having  employed  two  brokers,  and  they  being  en- 
gaged in  a  common  effort  to  sell  the  property  to  the  same  person, 
could  not  rightly  interfere  to  prevent  the  consummation  of  sale 
by  one  in  order  to  favor  the  other,  although  he  could  render  as- 
sistance by  accompanying  brokers  upon  inspection  of  property, 
boosting  the  sale  by  commendation.  Lumsden  v.  Jones,  205  S. 
W.  375,  —  Tex.  Civ.  App.  — . 

It  is  the  broker  who  first  produces  a  customer,  and  is  the  pro- 
curing cause  of  the  sale,  who  is  entitled  to  the  commission,  al- 
though the  actual  sale  is  made  by  another  broker.  Millage  v.  Ir- 
win,  187  P.  525,  —  Colo.  Sup.  — . 

A  broker  with  whom  land  was  listed  at  $29  net  was  entitled 
to  commission  where  he  was  the  cause  of  the  purchaser  from 
another  place  coming  to  look  at  the  land  and  introducing  the  pur- 
chaser to  the  owner  who,  at  the  broker's  request,  priced  the  land 
at  30  an  acre  to  the  purchaser,  although  the  sale  was  made  by  an- 
other broker  at  $28.50  per  acre,  with  whom  the  land  had  been 
listed  at  28,  there  being  no  evidence  to  show  that  the  buyer  would 
not  have  purchased  at  $30  if  it  had  not  been  for  the  second  bro- 
ker. Id. 

Sec.  446.    Broker  who  was  the  procuring  cause  of  the  sale  is 
entitled  to  the  commission. 

The  agent  who  is  the  procuring  cause  of  the  sale  is  entitled  to 
compensation.  See  also  Sec.  219. 

ALABAMA. 
Alexander  v.  Smith,  61  S.  68,  180  Ala.  541. 


374  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

ARKANSAS. 

Steivel  v.  Lolly  (Ark.  Sup.  '09),  115  S.  W.  1134;  Bogne  v. 
Marshall  (Ark.  Sup.  '08),  114  S.  W.  714;  Hunton  v.  Marshall, 
76  Ark.  375,  88  S.  W.  963;  Scott  v.  Patterson,  53  Ark.  419, 
13  S.  W.  419. 

CALIFORNIA. 

Zeimer  v.  Antisell,  75  Cal.  509,  17  P.  642. 

COLORADO. 

Anderson  v.  Smythe,  1  Colo.  App.  253,  28  P.  478;  Babcock 
v.  Merritt,  1  Colo.  App.  84,  27  P.  882;  Geiger  v.  Riser  (Colo. 
Sup.  '10),  107  P.  267;  Lawrence  v.  Weir,  3  Colo.  App.  401, 
33  P.  646 ;  Scott  v.  Lloyd,  19  Colo.  401,  35  P.  733 ;  Quinby  v. 
Telford,  4  Colo.  App.  210,  35  P.  276;  Duncan  v.  Borden,  13 
Colo.  App.  481,  59  P.  60;  Leech  v.  demons,  14  Colo.  App. 
45  59  P.  230;  Wheeler  v.  Beers  (Colo.  Sup.  '09),  101  P.  758. 

CONNECTICUT. 

Hoadley  v.  Danbury  Sav.  Bk.,  71  Conn.  599,  42  A.  667,  44 
L.  R.  A.  321;  Duncan  v.  Kearney,  72  Conn.  585,  45  A.  358; 
Williams  v.  Clowes,  75  Conn.  155,  52  A.  820. 

DELAWARE. 

Hawkins  v.  Chandler,  8  Houst.  (Del.)  434,  32  A.  464;  Held- 
meyer  v.  Cleaver,  104  A.  635  (Del.  Super.). 

DISTRICT  OF  COLUMBIA. 

Bryan  v.  Albert,  3  App.  (D.  C.)  Cas.  180;  Clark  v.  Morris,  30 
App.  (D.  C.)  Cas.  553. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  375 

GEORGIA. 
Indian  Trust  Co.  v.  Sandlein,  125  Ga.  222,  54  S.  E.  65. 

IDAHO. 
Church  v.  Denning,  14  Ida.  776,  96  P.  263. 

ILLINOIS. 

Henry  v.  Stewart,  185  111.  448,  57  N.  E.  190;  Rigdon  v. 
Moore,  226  111.  382,  80  N.  E.  901;  Sievers  v.  Griffin,  14  111. 
App.  63;  Davis  v.  Gassett,  30  111.  App.  41;  Adams  v.  Decker, 
34  111.  App.  17;  Jenks  v.  Nobles,  42  111.  App.  33;  Clark  v. 
Nessler,  50  111.  App.  550;  Watts  v.  Howard,  51  111.  App.  243; 
Neufeld  v.  Oren,  60  111.  App.  350;  McGuire  v.  Carlan,  61  111. 
App.  295;  Pate  v.  March,  65  111.  App.  482;  Barton  v.  Rogers, 
84  111.  App. .  49 ;  Dean  v.  J.rc/ier,  103  111.  App.  455 ;  Shannon 
v.  Potts,  117  111.  App.  80 ;  Rigdon  v.  Strong,  128  111.  App.  447 ; 
West  End  Store  v.  Mann,  133  111.  App.  544;  Finch  Bros.  v. 
Bete,  134  111.  App.  471 ;  Dickson  v.  Owens,  134  111.  App.  561  ; 
Patten  v.  W^'s,  134  111.  App.  645;  Gould  v.  Ricard,  136  111. 
App.  322;  Wright  v.  McClintock,  136  111.  App.  438;  tffo'we  v. 
Ferry  (111.  App.  '09),  88  N.  E.  186;  Winetur  v.  Jones,  113  111. 
App.  129. 

INDIANA. 

Clifford  v.  Met/er,  6  Ind.  App.  633,  34  N.  E.  23;  Mullen  v. 
Bowew,  26  Ind.  App.  253,  59  N.  E.  419;  Shelton  v.  Lundin 
(Ind.  App.  '10),  90  N.  E.  387. 

IOWA. 

Kelley  v.  Stone,  94  Iowa,  316,  62  N.  W.  842;  Stanford  v. 
Bell,  99  Iowa,  545,  68  N.  W.  817;  Semple  v.  Rand,  112  Iowa, 
616,  84  N.  W.  683;  Rounds  v.  Alee,  116  Iowa,  345,  89  N.  W. 
1098;  Hun  v.  Ashton,  121  Iowa,  265,  96  N.  W.  745;  Gibson 
v.  Hunt  (Iowa  Sup.  '03),  94  N.  W.  277;  Lewis  v.  Susmilch, 
130  Iowa,  203,  106  N.  W.  624. 


376  AMEEICAN  LAW  EEAL  ESTATE  AGENCY. 

KANSAS. 

Driesbach  v.  Rollins,  39  Kan.  268,  18  P.  187;  Marlott  v. 
Elliott,  69  Kan.  477,  77  P.  104;  Votaw  v.  McKeever,  76  Kan. 
870,  92  P.  1120. 

KENTUCKY. 

Higgins  v.  Miller,  109  Ky.  203,  22  L.  R.  702,  58  S.  W.  580 ; 
Collier  v.  Johnson,  23  Ky.  L.  R.  2453,  67  S.  W.  830 ;  Hopkins 
v.  Moseley,  31  Ky.  L.  R.  1308,  105  S.  W.  104;  Hobbs  v.  Miller, 
14  Ky.  L.  R.  719. 

LOUISIANA. 
Taylor  v.  Martin,  109  La.  137,  33  S.  112. 

MAINE. 
Straut  v.  Hubbard  (Me.  Sup.  '08),  71  A.  1020. 

MARYLAND. 

Schwartz  v.  Yearly,  31  Md.  270;  Livezy  v.  Miller,  61  Md. 
336;  Walker  v.  Baldwin,  106  Md.  619,  68  A.  25. 

MASSACHUSETTS. 

Desmond  v.  Stebbins,  140  Mass.  339,  5  N.  E.  150;  Dowling 
v.  Merrill,  165  Mass.  491,  43  N.  E.  295;  WMtcomb  v.  Macon, 
170  Mass.  479,  49  N.  E.  742;  French  v.  McKay,  181  Mass.  485, 
63  N.  E.  1068;  Sullivan  v.  Tw/te  (Mass.  Sup.  '09),  89  N.  E. 
239;  Willard  v.  Wn0/i*  (Mass.  Sup.  '09),  89  N.  E.  559. 

MICHIGAN. 

Ellsmore  v.  Gamble,  62  Mich.  543,  29  N.  W.  97;  Wood  v. 
Wells,  103  Mich.  320,  61  N.  W.  503. 

MINNESOTA. 

Armstrong  v.  Wann,  29  Minn.  126,  12  N.  W.  345;  Putman 
v.  Howe,  39  Minn.  363,  40  N.  W.  258. 


COMMISSION  AND   COMPENSATION   OF  AGENTS.  377 


MISSOURI. 

Brennan  v.  Roach,  47  Mo.  290;  Stande  v.  Blesch,  42  Mo. 
App.  578;  Russell  v.  Poor  (Mo.  App.  '08),  119  S.  W.  433; 
Goffe  v.  Gibson,  18  Mo.  App.  1;  Ramsey  v.  West,  31  Mo.  App. 
676 ;  Millan  v.  Porter,  31  Mo.  App.  563 ;  Wright  v.  Brown,  68 
Mo.  App.  577 ;  Crowley  v.  Somerville,  70  Mo.  App.  376 ;  Camp- 
bell v.  Vanstine,  73  Mo.  App.  84;  Hogan  v.  Slade,  98  Mo.  App. 
44,  71  S.  W.  1104;  McCreary  v.  Kellogg,  106  Mo.  App.  597, 
81  S.  W.  465 ;  Smith  v.  Truitt,  107  Mo.  App.  1,  80  S.  W.  686 ; 
Bailee  v.  McMurray,  113  Mo.  App.  253;  88  S.  W.  151;  Glade 
v.  Eastern  III.  Min.  Co.,  129  Mo.  App.  443,  107  S.  W.  1002. 

NEBRASKA. 

Frenzer  v.  Lee  (Neb.  Sup.  '02),  90  N.  W.  914;  Butler  v. 
Kennard,  23  Neb.  357,  36  N.  W.  579;  St.  Felix  v.  Gries,  34 
Neb.  800,  52  N.  W.  821 ;  Hambleton  v.  Fort,  58  Neb.  282,  78 
N.  W.  498 ;  Craig  v.  Weed,  58  Neb.  782,  79  N.  W.  718 ;  Lewis 
v.  McDonald(Neb.  Sup.  '09),  120  N.  W.  207 ;  Wasmer  v.  Lean,  32 
Neb.  519,  49  N.  W.  463. 

NEW  HAMPSHIRE. 
Morrison  v.  Hall  96  A.  298,  —  N.  H.  Sup.  — . 


NEW  JERSEY. 

Shepherd  v.  Hadden,  29  N.  J.  L.  334;  Vreeland  v.  Vetterlein, 
33  L.  J.  L.  247;  Derrickson  v.  Quimby,  43  N.  J.  L.  373. 


NEW  MEXICO. 
Jackson  v.  Brower,  167  P.  6,  22  N.  M.  615. 


378  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

NEW  YORK. 

Lloyd  v.  Matthews,  51  N.  Y.  124;  Sussdorf  v.  Schmidt,  55 
N.  Y.  319 ;  Wylie  v.  Marine  Nat.  Bk.,  61  N.  Y.  415 ;  Colwell  v. 
Tompkins,  158  N.  Y.  690,  53  N.  E.  1124 ;  Walton  v.  McMorrow, 
175  N.  Y.  493,  67  N.  E.  1090;  Shipman  v.  Freeh,  1  N.  Y.  S.  67; 
King  v.  Bauer,  8  N.  Y.  S.  466 ;  Turner  v.  Putnam,  13  N.  Y.  S. 
567;  Bickard  v.  Hoffman,  19  N.  Y.  S.  472;  Johnson  v.  Burn- 
heimer,  19  N.  Y.  S.  37 ;  Van  Doren  v.  Jelliff,  20  N.  Y.  S.  636, 
1  Misc.  354;  Meyers  v.  Dean,  29  N.  Y.  S.  578;  9  Misc.  183; 
McKnight  v.  Thayer,  21  N.  Y.  S.  440;  Whitehead  v.  Helsey, 
22  N.  Y.  S.  923,  3  Misc.  378;  Baker  v.  Thomas,  31  N.  Y.  S. 
993,  11  Misc.  112;  Atwater  v.  Wilson,  34  N.  Y.  S.  153,  13 
(Misc.  117;  Ware  v.  Dos  Passos,  38  N.  Y.  S.  673,  4  App.  Div. 
32;  Randruff  v.  Schroeder,  46  N.  Y.  S.  943,  21  Misc.  52;  Woods 
v.  Barton,  47  N.  Y.  S.  184,  21  Misc.  326;  Wychoff  v.  Bissell, 
48  N.  Y.  S.  1018,  24  App.  Div.  66 ;  Hamilton  v.  Gillander,  49 
N.  Y.  S.  663,  26  App.  Div.  156 ;  Hay  v.  Platt,  21  N.  Y.  S.  362, 
66  Hun,  488 ;  McNulty  v.  Rowe,  59  N.  Y.  S.  690,  28  Misc.  523 ; 
Goodwin  v.  Brennecke,  47  N.  Y.  S.  266,  21  App.  Div.  138; 
Burke  v.  Pfeffer,  68  N.  Y.  S.  799,  34  Misc.  794;  Weinstein  v. 
Goldberg,  40  N.  Y.  S.  680,  17  Misc.  613,  75  N.  Y.  St.  84;  De 
Zavola  v.  Rosaliner,  84  N.  Y.  S.  969 ;  Schatzberg  v.  Frosworth, 
84  N.  Y.  S.  259 ;  Whiteley  v.  Terry,  82  N.  Y.  S.  89,  83  App. 
Div.  197;  Summers  v.  Carey,  74  N.  Y.  S.  980,  69  App.  Div. 
428 ;  Bellesheim  v.  Palm,  66  N.  Y.  S.  273,  54  App.  Div.  77 ; 
Johnson  v.  Lord,  54  N.  Y.  S.  922,  35  App.  Div.  325 ;  Phinney 
v.  Chesebro,  84  N.  Y.  S.  449,  87  App.  Div.  409;  Woolley  v. 
Buhler,  25  N.  Y.  S.  1045,  73  Hun,  158;  Smith  v.  Seattle,  etc., 
R.  Co.,  25  N.  Y.  S.  368,  72  Hun,  202;  Martin  v.  Fegan,  88  N. 
Y.  S.  472,  95  App.  Div.  154;  Doran  v.  Bernard,  45  N.  Y.  S. 
387,  18  App.  Div.  36;  Southwick  v.  Swavinski,  99  N.  Y.  S. 
1079,  114  App.  Div.  681;  O'Shea  v.  Brill,  108  N.  Y.  S.  1020; 
Dreyer  v.  Rush,  42  How.  Pr.  22,  3  Daly,  434;  Harris  v.  Burt- 
nell,  2  Daly,  189;  Moracella  v.  Odell,  3  Daly,  123;  Jungeblut 
v.  Gindra,  118  N.  Y.  S.  942 ;  Winans  v.  Jaques,  10  Daly,  487 ; 
Nicholson  v.  Harrison,  120  N.  Y.  S.  923;  Chilton  v.  Butler, 
1  E.  D.  Smith,  150;  Morgan  v.  Mason,  4  E.  D.  Smith,  636; 
White  v.  Twitchings,  26  Hun,  503;  McClave  v.  Paine,  2 
Sweeney,  407,  41  How.  Pr.  140 ;  Frazer  v.  Brown,  67  N.  Y.  S. 
966,  33  Misc.  591;  Glentworthy  v.  Lathe,  21  Barb.  145;  Met- 
calfe  v.  Gordon,  83  N.  Y.  S.  808,  86  App.  Div.  368. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  379 

NORTH  CAROLINA. 
Kinsland  v.  GnmsTiaw  (N.  C.  Sup.    '07),  59  S.  E.  1000. 

OREGON. 

Wolverton  v.  Tuttler,  51  Ore.  501,  94  P.  961;  Jennings  v. 
Trummers,  52  Ore.  149,  96  P.  874. 

OHIO. 
Roush  v.  Loeffler,  18  Cir.  Ct.  806,  6  0.  Cir.  Dec.  760. 

OKLAHOMA. 
Yarborough  v.  Richardson,  131  P.  680,  38  Okl.  11. 

PENNSYLVANIA. 

Earp  v.  Cummins,  54  Pa.  St.  394;  Haines  v.  Signer,  9  Phila. 
51 ;  Burchfield  v.  Griffith,  10  Pa.  Super.  Ct.  618 ;  Inslee  v.  Jones, 
Brightly,  76;  Gibsons  EsL,  3  Pa.  Dist.  147,  14  Pa.  Co.  Ct.  241. 

EHODE  ISLAND. 
Greene  v.  Mitchell,  102  A.  516,  —  R.  I.  Sup.  — . 

SOUTH  CAROLINA. 
Goldsmith  v.  Coxe,  80  S.  C.  341,  61  S.  E.  555. 

SOUTH  DAKOTA. 
Wychoff  v.  Kerr  (S.  D.  Sup.  '09),  123  N.  W.  733. 


380  AMEBICAN  LAW  EEAL  ESTATE  AGENCY. 

TEXAS. 

Bowser  v.  Field  (Tex.  Civ.  App.  '91),  17  S.  W.  45;  Smith 
v.  Fowler  (Tex.  C.  A.  '09),  122  S.  "W.  598;  Newton  v.  Dickson 
(Tex.  Civ.  App.  '09),  116  S.  W.  143;  Brown  v.  Shelton  (Tex. 
Civ.  App.  '93),  23  S.  W.  483;  Hahl  v.  Wickes,  44  Tex.  Civ. 
App.  76,  97  S.  W.  838;  Gray  v.  Carroll  (Tex.  Civ.  App.  '07), 
105  S.  W.  214;  West  v.  Thompson  (Tex.  Civ.  App.  '08),  106 
S.  W.  1134;  Bowman  v.  8.  W.  Land  Co.  (Tex.  Civ.  App.  '08), 
107  S.  W.  585;  Edwards  v.  Pike  (Tex.  Civ.  App.  '08),  107  S. 
W.  586;  Schultz  v.  Zelman  (Tex.  Civ.  App.  '08),  111  S.  W. 
776;  Peach  River  Lumber  Co.  v.  Montgomery  (Tex.  Civ.  App. 
'08),  115  S.  W.  87. 

VlBGINIA. 

Cannon  v.  Bates,  80  S.  E.  581,  115  Va.  711. 

WASHINGTON. 

N  orris  v.  Byrne,  38  Wash.  592,  80  P.  808;  Prink  v.  Gilbert, 
101  P.  1088,  53  Wash.  392 ;  Dore  v.  Jones,  126  P.  413,  70  Wash. 
157;  Parker  v.  Seattle  Land  &  Imp.  Co.,  165  P.  1086,  —  Wash. 
Sup.  — . 

WEST  VIKGINIA. 

Cooper  v.  Upton  (W.  Va.  Sup.  '09),  64  S.  E.  523. 

WYOMING. 

Murphy  v.  W.  &  W.  Live  Stock  Co.,  187  P.  187,  re.  den.,  189 
P.  857,  —  Wyo.  Sup.  — . 

ENGLAND. 

Bray  v.  Chandler,  18  C.  B.  717,  86  E.  C.  L.  718;  Murray  v. 
Curry,  7  C.  &  P.  584,  32  E.  C.  L.  771;  Colonial  Trust  Co.  v. 
Pac.  Packing  &  Nav.  Co.,  158  Fed.  277,  85  C.  C.  A.  539.  Com- 
pare Sec.  581. 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  381 

If  a  broker  is  the  procuring  cause  of  the  sale,  the  owner 
can  not  sell  at  a  lower  price,  and  thereby  escape  liability  for 
commissions.  Hubachek  v.  Hazzard,  83  Minn.  437,  86  N.  W. 
426;  Frayner  v.  Morse,  55  Neb.  595,  75  N.  W.  1103.  If  the 
broker  be  the  instrument  through  whom  a  sale  has  been  ef- 
fected, no  sort  of  artifice,  deceit  or  fraud  will  deprive  him  of 
his  commission.  C order  v.  O'Neill,  176  Mo.  401,  75  S.  W.  764, 
774. 

The  fact  that  before  a  sale  the  broker  did  not  inform  the 
owner  that  the  prospective  purchaser  was  his  customer  is  not 
altogether  controlling.  Metcalfe  v.  Gordon,  83  N.  Y.  S.  808, 
86  App.  Div.  368.  Where  a  broker  is  employed  to  find  a  pur- 
chaser at  a  price  satisfactory  to  his  principal,  as  a  condition 
to  demand  commissions  he  must  be  the  procuring  cause  of  the 
sale.  Reads  v.  Hank,  147  Mich.  42,  110  N.  W.  130,  13  D.  L. 
N.  952.  A  broker  who  merely  called  the  attention  of  a  church 
officer  to  a  lot  he  had  for  sale,  telling  him  the  price,  is  not 
the  efficient  and  procuring  cause  of  the  sale,  where  the  church 
refused  to  purchase  through  him,  and  bought  the  property 
through  another  agent.  Witherbee  v.  Walker,  42  Colo.  1,  93 
P.  1118. 

Plaintiff,  a  real  estate  broker,  with  authority  to  sell  land, 
visited  defendant  with  a  purchaser,  and  thereafter  continued 
negotiations  which  were  never  expressly  terminated.  Without 
any  intervening  agency  the  purchaser  decided  to  buy,  but 
made  an  arrangement  with  another  real  estate  broker  where- 
by such  broker  agreed  to  divide  his  commissions  with  the  pur- 
chaser, and  the  latter  broker,  with  full  knowledge  of  plain- 
tiff's negotiations,  solicited  and  received  authority  to  sell  the 
land,  the  owner  not  knowing  of  plaintiff's  negotiations  with 
the  purchaser.  Held,  that,  as  between  the  brokers,  plaintiff's 
efforts  were  the  procuring  cause  of  the  sale,  and  he  was  en- 
titled to  the  commissions.  Lewis  v.  McDonald,  83  Neb.  694, 
120  N.  W.  207.  See  also  Sec.  444. 


382  AMERICAN   LAW   EEAL   ESTATE   AGENCY. 

If  a  broker  is  the  procuring  cause  of  a  sale  of  realty,  it  is  im- 
material to  his  right  to  commission  that  he  did  not  personally 
conduct  negotiations,  was  not  present  when  the  bargain  was 
closed,  or  that  the  principal  at  the  time  did  not  know  that  the 
purchaser  was  found  by  the  broker.  Gilbert  v.  McCullough,  125 
1ST.  W.  175,  146  Iowa,  353 ;  McKinney  v.  Thedford,  166  S.  W.  443. 

The  broker  must  be  the  direct  and  proximate  cause,  and  not 
an  indirect,  incidental  or  remote  cause  of  bringing  a  customer  to 
his  principal.  Lord  v.  U.  S.  Trans.  Co.,  128  N.  Y.  Sup.  451,  143 
App.  Div.  437. 

The  broker  is  entitled  to  the  commission  who  brought  the 
parties  together,  and  not  the  other,  who  was  employed  by  the 
purchaser  and  closed  the  sale.  Central  Turnverein  of  Pittsburgh 
v.  Fitzpatriclc,  86  A.  487,  238  Pa.  532. 

Broker,  to  be  the  procuring  cause  of  a  sale,  must  first  call 
the  purchaser's  attention  to  the  property  and  start  negotiations 
which  culminate  in  a  sale.  Wheeler  v.  Hunt,  133  P.  52,  37  Okl. 
523 ;  Langford  v.  Issenbuth,  134  N.  W.  889,  28  S.  D.  451. 

Where  negotiations  resulting  in  a  sale  of  land  were  not  car- 
ried on  by  the  agent,  but  by  the  owner,  the  agent  must  show  that 
he  was  the  efficient  cause  of  the  negotiations  resulting  in  a  sale 
before  he  will  be  entitled  to  a  commission.  Cooper  v.  Upton,  64 
S.  E.  523,  60  W.  Ya.  648,  65  W.  Va.  401. 

To  entitle  him  to  commissions,  a  broker  need  not  personally 
conduct  the  negotiations  leading  to  the  sale,  or  be  present  when 
it  is  completed,  nor  need  the  principal  know,  at  the  time,  that 
the  purchaser  was  found  by  the  broker,  it  only  being  essential 
that  the  broker's  efforts  be  the  producing  cause  of  the  sale.  Justy 
v.  Erro,  117  P.  575,  16  Cal.  App.  519;  Pridmore  v.  Wilson,  159 
111.  App.  343;  Sidebothom  v.  Spengler,  133  S.  W.  101,  154  Mo. 
App.  11. 

Where  a  sale  is  actually  made  through  the  owner  closing  the 
deal  with  the  customer  of  the  broker,  the  broker  need  not,  to  re- 
cover, show  that  the  sale  was  completed  within  the  time  fixed  in 
the  contract  of  employment,  or  in  an  option  on  the  property,  pro- 
vided the  broker  initiated  the  transaction  of  purchase  within  the 
prescribed  time,  and  was  the  procuring  cause.  Cole  v.  Crump, 
156  S.  W.  769,  174  Mo.  App.  215. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  383 

Under  the  ordinary  realty  broker's  contract,  one  whose  services 
were  the  predominating  efficient  cause  of  the  sale  is  entitled  to 
the  commission,  although  others  may  have  contributed  to  its  con- 
summation. Myers  v.  Batcheller,  163  N.  Y.  Sup.  688,  177  App. 
Div.  47. 

Where  the  defendant  listed  her  property  for  sale  with  the  plain- 
tiffs, who  advertised  it,  and  later  one  of  them  showed  it  to  the 
purchaser,  who  had  been  referred  to  them  by  another  real  estate 
agent  to  whom  the  purchaser  had  applied  for  information  as  to 
places  for  rent,  suggesting  that  the  purchaser  buy  the  place,  and 
gave  him  the  price,  and  notified  the  defendant  that  the  property 
had  been  submitted  to  the  purchaser,  and  the  latter  returned  to 
the  office  of  the  other  agent,  where  the  sale  was  negotiated;  held, 
that  the  plaintiffs  were  the  procuring  cause  of  the  sale  and  en- 
titled to  the  commission.  Engels  v.  Manning,  202  111.  App.  209. 

Where  the  plaintiff,  after  submitting  to  the  defendant  a  propo- 
sition for  trading  the  defendant's  real  estate  for  certain  other 
real  estate,  which  the  defendant  rejected,  and  informed  plaintiff 
he  wanted  cash  for  his  property,  and  took  no  further  action  in 
the  matter;  and  about  ten  months  later  a  trade  of  such  real  es- 
tate was  tendered  through  another  agent,  who  effected  such  trade 
by  first  procuring  a  purchaser  for  the  real  estate  the  defendant 
took  in  trade.  Held,  that  the  plaintiff  was  not  the  procuring 
cause  of  the  trade,  notwithstanding  he  first  proposed  it.  Baldino 
v.  Kadison,  204  111.  App.  197. 

Plaintiff,  who  showed  purchaser  a  number  of  farms,  including 
defendant's  farm,  after  he  had  arranged  to  visit  such  farms  with 
another  broker  from  whom  he  subsequently  purchased;  held,  not 
effective  agent  in  bringing  about  the  sale.  Bliss  v.  Reed,,  102  A. 
610,  —  E.  I.  — . 

Where  an  owner  of  real  estate  sets  machinery  in  motion  to 
induce  a  sale  of  real  estate  through  the  agency  of  a  broker,  and  a 
sale  results  through  the  broker's  intervention,  it  is  not  material 
that  the  negotiations  were  concluded  directly  with  the  owner;  in 
such  case  the  broker  is  entitled  to  his  commissions.  Cain  v. 
Werner,  67  Pa.  Super.  Ct.  438. 

If,  after  negotiations  between  the  owner  of  real  estate  and  a 
prospective  purchaser  have  been  broken  off,  the  owner,  after  prom- 
ising an  agent  that  he  will  pay  him  commissions  if  he  will  get 


384  AMERICAN    LAW    EEAL   ESTATE    AGENCY. 

such  prospective  purcEaser  to  buy  the  property,  makes  a  sale  to 
such  purchaser,  after  efforts  of  the  agent  had  had  the  effect  of 
bringing  the  parties  to  an  understanding,  such  agent  may  recover 
the  agreed  commissions.  O'Connor  v.  Kennedy,  200  111.  App.  426. 

Under  bare  contract  to  pay  a  commission  "for  trading  my  615 
acres  farm  at  H.  for  garage  at  H.,"  the  agent  is  entitled  to  com- 
mission on  such  615  acres,  although  owner  gave  other  land  in  ad- 
dition, and  made  various  arrangements  as  to  incumbrances  with- 
out consulting  the  agent.  Herr  v.  McConnell,  119  N.  E.  496,  — 
Ind.  App.  — . 

Plaintiffs  were  not  the  procuring  cause  of  the  trade  of  defend- 
ant's property,  where  defendant  refused  to  make  it  without  know- 
ing the  name  of  the  owner  of  the  other  property  when  it  was  first 
proposed  by  plaintiff,  and  several  months  later  effected  a  trade 
through  his  answer  to  an  advertisement  by  the  owner  of  the  prop- 
erty, with  which  plaintiffs  had  nothing  to  do.  Roegmer  v.  Frey, 
209  111.  App.  303. 

Broker  having  contract  to  sell  land  at  stipulated  price  can  not 
recover  commissions  on  sale  made  by  seller  on  the  ground  of 
being  the  procuring  cause  of  such  sale,  unless  it  affirmatively  ap- 
pears that  sale  was  made  on  the  terms  on  which  plaintiff  was  au- 
thorized to  procure  a  purchaser.  Sanden  &  Huss  v.  Ausenhus, 
168  N".  W.  801,  —  Iowa  Sup.  — . 

That  brokers  have  introduced  a  prospective  purchaser  to  look 
at  certain  land,  but  has  failed  to  make  a  sale  before  the  land  is 
withdrawn  from  the  market,  does  not  establish  connection  with 
a  subsequent  purchase  of  such  land  by  the  same  purchaser  direct 
from  the  owner,  so  as  to  create  a  liability  for  commissions  where, 
during  the  intervening  time,  the  purchaser  has  changed  his  mind. 
Saunders  v.  Hackley  &  Hume  Co.,  208  S.  W.  67,  —  Mo.  Sup.  — . 

Where  purchasers  had  been  trying  to  buy  property  for  a  period 
of  eleven  years,  and  during  such  period  had  been  negotiating  with 
owners,  broker  was  not  procuring  Or  efficient  cause  of  sale,  though 
he  had  the  property  listed  and  had  sent  purchasers  letters  de- 
scribing it,  among  other  properties  for  sale,  without  calling  par- 
ticular attention  to  it.  Eoih  v.  Thomson,  180  P.  656,  —  Cal. 
Sup.  — . 

Where  a  broker  employed  to  sell  property  found  a  prospective 
purchaser,  but  failed  to  sell,  and  such  purchaser  thereafter  secretly 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  385 

arranged  with  a  third  party  to  purchase  the  property  directly  from 
the  owner,  and  neither  the  broker  nor  the  owner  knew  of  such 
secret  arrangement,  the  broker  was  not  the  procuring  cause  of  the 
sale.  Ritch  v.  Robertson,  106  A.  509,  —  Conn.  Sup.  — . 

Where  sale  was  effected  upon  terms  entirely  different  from  the 
offer  made  by  plaintiff  for  the  purchaser  he  interested,  and 
through  the  disassociated  efforts  of  an  independent  broker,  plain- 
tiff could  not  recover  commissions,  he  not  being  the  procuring 
cause  of  the  contract.  Morgan  v.  Congregation  Agudath  Achim 
of  Harlem,  176  K  Y.  Sup.  707. 

It  is  not  the  law  that  a  real  estate  broker  can  not  recover  a 
commission  on  sale  of  a  farm,  though  he  was  the  inducing  cause 
thereof,  if  the  owner  did  not  know  when  he  sold  that  the  broker 
had  been  the  main  efficient  cause  of  inducing  the  purchaser  to 
buy.  Thomas  v.  Wychoff,  174  N.  W.  26,  —  Iowa  Sup.  — . 

If  a  realty  broker  told  the  purchaser  of  a  farm  "he  would  not 
want  the  land,  that  there  was  no  use  to  go  to  see  it,  and  that  it 
was  rough,"  etc.,  but  the  purchaser,  nevertheless,  bought  through 
the  efforts  of  some  one  other  than  plaintiff,  plaintiff  was  not  en- 
titled to  a  commission.  Id. 

A  broker  who  did  not  have  the  exclusive  sale  of  property  can 
not  recover  commissions  without  showing  that  his  services  were 
the  effective  cause  of  bringing  about  the  sale,  it  being  insufficient 
that  he  procured  the  one  and  communicated  to  the  owner  who 
purchased  the  property.  Rosenfield  v.  Wall,  109  A.  409,  —  Conn. 
Sup.  — . 

Where  two  or  more  brokers,  without  exclusive  authority  to  sell, 
each  playing  some  part  in  bringing  about  a  sale,  each  is  not  en- 
titled to  a  commission,  or  to  a  share  of  the  commission,  but  some 
one  of  them  is  entitled  to  the  whole  commission;  t.  e.,  he  who 
deserves  to  be  regarded  as  the  procuring  cause  of  the  sale  by 
reason  of  his  efforts  having  been  the  efficient  proximate  cause  of 
its  accomplishment,  or  the  predominating  efficient  cause.  Murphy 
v.  Linsky,  109  A.  412,  —  Conn.  Sup.  — ;  Rosenfield  v.  Wall,  109 
A.  409,  —  Conn.  Sup.  — . 

Defendant  listed  his  property  with  plaintiff  broker  for  sale,  but 
gave  no  exclusive  agency,  and  while  the  broker  discovered  one  who 
ultimately  purchased  the  property,  he  was  unable  to  procure  from 
the  purchaser  an  offer  which  the  owner  would  accept.  Held,  that 


386  AMERICAN   LAW   EEAL   ESTATE   AGENCY. 

where  the  owner  accepted  a  larger  offer  made  through  a  broker 
whom  the  purchaser  engaged,  plaintiff  could  not  recover  commis- 
sion, not  having  been  the  efficient  cause  of  the  sale.  Rosenfield  v. 
Wall  109  A.  409,  —  Conn.  Sup.  — . 

The  mere  fact  that  a  realty  broker,  without  an  exclusive  agency 
to  sell,  first  approached  the  ultimate  buyer  through  the  tatter's 
agents,  and  thus  brought  him  into  the  field  as  a  possible  pur- 
chaser, a  sale  to  him  on  different  terms  than  first  authorized,  but 
satisfactory  to  the  owner,  if  in  fact  consummated,  is  not  decisive 
of  the  broker's  right  to  a  commission,  though  deserving  of  consid- 
eration in  passing  on  claim.  Murphy  v.  LinsTcy,  109  A.  412,  — 
Conn.  Sup.  — . 

Where  broker,  who  had  been  employed  by  owner  to  find  a  pur- 
chaser upon  terms  acceptable  to  her,  introduced  purchaser  to 
owner,  and  where  the  contract  thereupon  entered  into  was  there- 
after abrogated,  and  a  new  contract  entered  into  upon  different 
terms,  and  where  broker's  employment  was  continued  after  abro- 
gation, and  contract  of  agency  was  in  full  force  at  the  time  of 
making  the  new  contract,  owner  was  liable  for  commission,  even 
though  in  entering  into  the  new  contract  parties  had  negotiated 
directly,  without  the  knowledge  of  the  broker,  the  broker  being 
the  procuring  cause.  Harvey  &  Newins,  Inc.  v.  Hermann,  181 
N.  Y.  Sup.  42. 

In  a  realty  broker's  action  for  commissions,  as  having  brought 
about  a  sale  to  the  ultimate  buyer  first  approached  by  him,  evi- 
dence held  to  sustain  jury's  finding  that  plaintiff  was  not  the 
efficient  procuring  cause  of  sale,  despite  his  claim  that  when  he 
first  approached  the  buyer  the  latter  was  ready,  able  and  willing 
to  buy  on  the  terms  ultimately  concluded,  and  subsequently 
merely  availed  himself  of  opportunity  to  do  so  through  another 
broker,  owner  having  meanwhile  decided  to  accept  less  price.  Mur- 
phy v.  Linsky,  109  A.  412,  —  Conn.  Sup.  — . 

Broker,  to  be  entitled  to  recover  commissions,  must  have  been 
the  procuring  cause  of  that  for  which  he  is  employed,  it  being 
insufficient  that  his  act  was  merely  one  of  the  links  in  a  chain  of 
causes.  Low  v.  Paddock,  220  S.  W.  969,  —  Mo.  App.  — . 

Where  the  terms  of  a  broker's  contract  authorizing  him  to  sell 
a  farm  bound  the  owner  for  commissions  if  sale  was  made  on  the 
terms  stated,  or  on  such  other  price  or  terms  as  might  thereafter 


COMMISSION  AND  COMPENSATION   OF  AGENTS.  387 

be  agreed  to  by  the  owner,  the  fact  that  the  owner  and  a  pros- 
pective buyer  procured  by  the  broker  did  not  agree  on  terms  at 
their  first  meeting,  did  not  absolve  the  owner  from  payment  of 
commission  if  a  sale  was  subsequently  made  to  the  buyer  on  dif- 
ferent terms,  and  the  broker  was  its  procuring  cause,  though  the 
owner  had  previously  revoked  the  broker's  authority,  the  contract 
covering  no  specific  time,  such  revocation  having  been  in  bad 
faith  and  to  avoid  payment  of  commission.  Baskett  v.  Jones,  225 
S.  W.  158,  —  Ky.  Ct.  App.  — . 

Simply  to  show  that  a  broker  is  the  efficient  cause  of  consum- 
mation of  a  sale  does  not  show  an  agency  to  sell.  Newell  v.  Lafe- 
rella,  225  S.  W.  853,  —  Tex.  Civ.  App.  — . 

To  make  the  procuring  the  "efficient  and  procuring  cause"  of  a 
sale,  so  as  to  entitle  him  to  his  commission,  it  is  essential  that 
it  result  from  his  efforts,  such  as  introducing  the  purchaser  to 
the  seller,  advertising,  giving  the  seller  the  name  of  the  customer, 
or  showing  the  purchaser  over  the  premises.  Garner  v.  Davis,  225 
S.  W.  567,  —  Tex.  Civ.  App.  — . 

Where  the  owner  placed  his  property  in  the  hands  of  several 
brokers,  giving  none  the  exclusive  right  of  sale,  and  several  bro- 
kers called  the  purchaser's  attention  to  the  property,  but  only  one 
stopped  and  pointed  it  out  to  him,  at  which  time  the  purchaser 
was  not  interested  in  buying  it,  but  subsequently  the  purchaser, 
at  his  request,  was  again  shown  the  property  by  another  real 
estate  agent,  and  purchased  the  property;  the  first  real  estate 
agent  was  not,  under  such  evidence,  entitled  to  a  commission,  as 
he  was  not  the  efficient  procuring  cause  of  the  sale.  Moore  v. 
Rich,  86  S.  772,  —  Miss.  Sup.  — . 


CHAPTER  III. 

SECTION.  SECTION. 

447.  Continuity   broken,   and    its       449.     Consummation  of  contract. 

effect  upon  the  rights  of       450.     Introduction    of   prospective 
the  broker.  purchaser. 

448.  Sequence  broken,  and  its  ef-    450a.  Broker    entitled    to    compen- 

fect    upon     the     broker's  sation    on    furnishing    name 

right  to  commissions.  of  prospective  purchaser  to 

owner. 

Sec.  447.     Continuity  broken,  and  its  effect  upon  the  rights 
of  the  broker. 

Plaintiff  had  a  contract  with  defendant  by  which  in  consid- 
eration of  special  efforts  of  the  former  to  sell  a  house  belonging 
to  the  defendant,  and  of  advertising  the  house  in  a  circular 
which  plaintiff  was  to  publish,  the  defendant  agreed  to  pay  a 
certain  commission  on  the  sum  for  which  the  house  should  be 
sold;  if  the  sale  was  made  by  any  other  broker,  a  minimum 
price  was  fixed  at  which  the  property  was  to  be  sold.  Held, 
that  the  plaintiff  was  not  entitled  to  any  commission  where  the 
house  was  subsequently  sold  through  another  broker  by  the 
acceptance  of  a  standing  offer  made  through  such  broker  sev- 
eral months  after  the  contract  with  plaintiff  was  entered  into, 
and  the  sale  being  at  a  less  figure  than  that  named  in  the  con- 
tract with  plaintiff.  Powell  v.  Anderson,  15  Daly  (N.  Y.), 
210,  4  N.  Y.  S.  706. 

Where  an  owner  openly  places  his  property  in  the  hands  of 
rival  agents  for  sale  and  one  makes  the  sale  to  a  customer 
with  whom  the  other  had  first,  but  unsuccessfully  negotiated, 
the  owner  is  not  liable  to  the  latter  for  commissions.  Carper 
v.  Sweet,  26  Colo.  547,  57  P.  45;  Wiggins  v.  Wilson,  55  Fla. 
346,  45  S.  1011;  Girardieu  v.  Gibson,  122  Ga.  313,  50  S.  E. 
91;  Carlson  v.  Nathan,  43  111.  App.  364;  West  End  Co.  v. 
Mann,  133  111.  App.  544;  Platt  v.  Jalir,  9  Ind.  App.  58,  36 
N.  E.  294;  Livezy  v.  Miller,  61  Md.  336;  Leonard  v.  Eld- 
388 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  389 

ridge,  184  Mass.  594,  69  N.  E.  337;  Crowningshield  v. 
Foster,  169  Mass.  237,  47  N.  E.  879;  Chandler  v.  Sutton,  5 
Daly  (N.  Y.),  H2;  De  Zavola  v.  Rozaliner,  84  N.  Y.  S.  969; 
Friedman  v.  Havemeyer,  55  N.  Y.  S.  97,  37  App.  Div.  518; 
Earp  v.  Cummins,  54  Pa.  St.  394;  Dewall  v.  Moody,  24  Tex. 
Civ.  App.  627,  60  S.  W.  269;  Montgomery  v.  Biering  (Tex. 
Civ.  App.  '95),  30  S.  W.  508;  Land  Mtge.  Bk.  v.  Hargis  (Tex. 
Civ.  App.  '02),  70  S.  W.  352. 

If  the  broker  fails  to  bring  a  customer  to  terms  and  aban- 
dons negotiations,  he  is  not  ordinarily  entitled  to  commissions 
upon  a  sale  made  by  the  owner  to  the  customer.  Watts  v. 
Howard,  51  111.  App.  243;  Cullen  v.  Bell,  43  Minn.  226,  45 
N.  W.  428;  Cathcart  v.  Bacon,  47  Minn.  34,  49  N.  W.  331; 
Tooker  v.  Duckworth,  107  Mo.  App.  231,  80  S.  W.  963;  Hen- 
kel  v.  Dunn,  97  Mo.  App.  671,  71  S.  W.  735 ;  Barnard  v.  Mon- 
nott,  34  Barb.  (N.  Y.)  90;  Meyer  v.  Strauss,  58  N.  Y.  S.  904, 
42  App.  Div.  613 ;  Getzler  v.  Boehm,  38  N.  Y.  S.  52,  16  Misc. 
390;  Alden  v.  Earle,  121  N.  Y.  688,  24  N.  E.  705;  Tyng  v. 
Constable,  71  N.  Y.  S.  820,  35  Misc.  283 ;  Miller  v.  Vining,  98 
N.  Y.  S.  466,  112  App.  Div.  304 ;  Schano  v.  Storch,  107  N.  Y. 
S.  26,  56  Misc.  484;  Jones  v.  Buck  (Iowa  Sup.  '09),  120  N. 
W.  112;  Cannon  v.  Bates,  80  S.  E.  581,  115  Va.  711.  See  also 
Sec.  148. 

"Where  a  broker  employed  to  sell  a  whole  tract  of  land  or  a 
part  thereof,  failed,  and  an  attempt  was  made  to  discharge 
him,  but  he  continued  his  negotiations  and  the  owner  after- 
ward sold  a  portion  to  the  broker's  customer,  the  broker  was 
held  entitled  to  recover  a  proportionate  commission.  Diamond 
v.  Wheeler,  80  N.  Y.  S.  416,  80  N.  Y.  App.  Div.  58. 

Plaintiffs,  to  recover  under  their  agreement  to  negotiate  the 
purchase  for  defendant  of  land  for  certain  commissions  on  the 
amount  of  the  purchase,  must  show  that  through  their  efforts 
and  negotiations  defendant  became  the  purchaser;  this  is  not 
the  case  where  their  efforts  to  get  a  price  from  the  owner  which 
defendant  would  accept  failed,  and  long  after  their  negotia- 
tions and  dealings  with  him  had  ceased,  and  they  and  defend- 
ant had  abandoned  hope  of  reaching  an  agreement  with  him, 
he,  on  learning  that  defendant  was  to  commence  condemna- 
tion proceedings  for  the  land,  made  an  offer  to  defendant, 
which  was  accepted,  to  submit  to  arbitration  the  price  at  which 


390  AMEBICAN"  LAW  BEAL  ESTATE  AGENCY. 

defendant  should  take  the  property.  Martien  v.  Mayor,  etc., 
Baltimore,  109  Md.  260,  71  A.  966. 

If  a  broker,  after  offering  a  farm  at  a  price  in  excess  of 
the  lowest  price  authorized  by  the  owner,  which  the  purchaser 
said  was  too  high,  allowed  the  purchaser  to  go  with  the  un- 
derstanding that  the  price  stated  was  the  lowest  which  would 
be  accepted,  and  made  no  arrangements  for  further  negotia- 
tions, and  the  purchaser  notified  the  owner  of  the  negotiations 
with  the  broker,  and  that  he  would  not  deal  further  with  him, 
and  the  owner,  in  good  faith,  sold  the  farm  to  the  purchaser, 
the  broker  would  not  be  entitled  to  commissions  on  the  sale. 
Heenan  v.  Harris  (Mich.  Sup.  '09),  121  N.  W.  741,  16  D.  L. 
N.  344.  See  also  Sec.  292. 

The  predominating,  inducing  cause  of  a  sale  or  exchange  of 
properties  is  the  cause  originating  a  series  of  events  which,  with- 
out break  of  continuity,  results  in  a  sale  or  exchange.  In  re 
Breon  Lumber  Co.,  181  F.  909;  Nooning  v.  Miller,  165  S.  W. 
1119,  178  Mo.  App.  297. 

Sec.  448.  Sequence  broken,  and  its  effect  upon  the  broker's 
right  to  commissions. 

A  broker  who  negotiated  with  one  person,  who  called  the 
attention  of  another  to  the  property,  and  that  other  bought 
from  the  vendor,  or  through  another  broker,  is  not  entitled 
to  commissions;  to  be  entitled  to  commissions  he  must  be  the 
procuring  cause  and  not  merely  a  cause  ot  causes.  Baumgarth 
v.  Hayne,  54  111.  App.  496;  Gleason  v.  Nelson,  162  Mass.  245, 
38  N.  E.  497;  Vandyke  v.  Walker,  49  Mo.  App.  381;  Burk- 
holder  v.  Fonner,  34  Neb.  1,  51  N  W.  293;  Johnson  v.  Seidal, 
150  Pa.  St.  396,  24  A.  687.  See  also  Sec.  69. 

Under  somewhat  similar  circumstances,  in  another  State,  a 
broker  was  held  entitled  to  recover  commissions.  Lincoln  v. 
McClatchie,  36  Conn.  136.  See  also  Games  v.  Finnegan,  198 
Mass.  128,  84  N.  E.  324. 

In  the  case  of  Gleason  v.  Nelson,  162  Mass.,  the  court,  re- 
ferring to  the  Connecticut  case,  observes  that  the  broker  in 
that  case,  "advertised  the  property;  A.  saw  the  advertisement, 
conferred  with  the  broker,  and  went  and  told  his  friend  B.,  in 
whose  behalf  he  felt  an  interest,  and  B.  bought  the  property. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  391 

It  was  held  that  the  broker  was  the  procuring  cause  of  the  sale 
and  so  was  entitled  to  his  commission."  But,  "where  there  has 
been  no  direct  communication  between  the  broker  and  the  pur- 
chaser, it  must  be  shown  affirmatively  that  the  latter  was  induced 
to  enter  into  the  negotiation  which  resulted  in  the  purchase 
through  the  means  employed  by  the  broker  for  that  purpose.  If 
the  broker  merely  talked  about  the  property  with  different  persons, 
and  one  of  them  of  his  own  accord,  and  not  acting  in  behalf  of 
the  broker,  mentioned  to  another  that  the  property  was  for  sale, 
and  such  last  mentioned  person  thereupon  looked  into  the  matter 
and  finally  became  the  purchaser,  the  agency  of  the  broker  in  in- 
ducing the  sale  was  not  sufficiently  direct  to  entitle  him  to  a  com- 
mission." (162  Mass.  249-250.)  See  the  next  Section. 

Where  a  real  estate  broker  employed  to  procure  a  building  site 
for  a  corporation  directed  the  attention  of  the  corporation  to  a 
site  which  the  corporation  subsequently  purchased  at  a  price  less 
than  that  stated  by  the  broker,  and  the  negotiations  resulting  in 
the  purchase  were  brought  about  by  the  broker's  disclosure  of  the 
property,  he  had  earned  his  commission;  but  if  the  property,  as 
disclosed  by  the  broker,  was  not  satisfactory  to  the  corporation, 
and  the  broker's  disclosure  did  not  result  in  negotiations  leading 
to  the  purchase,  or  the  negotiations  began  as  a  result  of  a  dis- 
closure, without  pointing  to  the  ultimate  purchase,  was  due  to 
the  acts  of  another,  the  broker  could  not  recover  commissions. 
Murphy  v.  Knights  of  Columbus  Building  Co.,  135  S.  W.  446, 
155  Mo.  App.  649. 

Where  an  agent  failed  to  get  his  offer  within  the  terms  of  his 
authorization,  and  the  purchaser  afterwards  buys  the  same  piece 
of  property  on  the  same  or  less  terms  than  those  on  which  the 
first  agent  had  authority  to  sell,  the  chain  of  causation  would  be 
broken.  Grain  v.  Miles,  134  S.  W.  52,  154  Mo.  App.  338. 

Sec.  449.    Consummation  of  contract. 

Where  a  broker  is  employed  to  sell  or  exchange  property 
the  terms  of  the  employment  may  require  the  completion  of 
the  contract  or  transfer  of  the  title  before  compensation  is 
earned,  unless  the  act  of  the  principal  has  prevented  perform- 
ance. Hyams  v.  Miller,  71  Ga.  608;  Eerfoot  v.  Steele,  113  111. 


392  AMERICAN  LAW   REAL  ESTATE   AGENCY. 

610;  Jenkins  v.  Hollingsworth,  83  111.  App.  139;  Ormsby  v. 
Graham,  123  Iowa,  202,  98  N.  W.  724;  Boyd  v.  Watson,  101 
Iowa,  214,  70  N.  W.  120;  Strait  on  v.  Sam'l.  W.  Jones  Co., 
20  Ky.  L.  E.  1787,  50  S.  W.  33;  De  Santos  v.  Tcwey,  13  La. 
Ann.  151;  Didson  v.  Duraldo,  2  Eob.  (La.)  163;  Games  v. 
Howard,  180  Mass.  569,  63  N.  E.  122;  Kronenberger  v.  Bier- 
ling,  76  N.  Y.  S.  895,  37  Misc.  817;  Feiner  v.  Kobke,  34  N. 
Y.  S.  676,  13  Misc.  499;  Pierce  v.  Trwtt  (Pa.  Sup.  '88),  12  A. 
661 ;  Michener  v.  Beiern,  9  Pa.  Co.  Ct.  637 ;  Brennam  v.  Perry, 
7  Phila.  (Pa.)  242;  Lemper  v.  Armstrong  (Wash.  Sup.  '09), 
102  P.  775;  Pratt  v.  Patterson,  7  Phila.  (Pa.)  135;  Owen  v. 
Kuhn  (Tex.  Civ.  App.  '03),  72  S.  W.  432;  Morton  v.  Barney, 
140  111.  App.  33 ;  Thos.  L.  Reynolds  Co.  v.  Toch,  121  N.  Y.  Sup. 
85 ;  Hopkins  v.  Settle,  149  P.  890,  46  Okl.  801 ;  Cheek  v.  Nichol- 
son, 133  S.  W.  707,  —  Tex.  Civ.  App.  — ;  Handley  v.  Shaffer, 
59  S.  286,  177  Ala.  636 ;  Reeder  v.  Epps,  166  S.  W.  747,  112  Ark. 
566;  Justy  v.  Erro,  117  P.  575,  16  Cal.  App.  519;  Perkins  v. 
Russell,  137  P.  907,  56  Colo.  120;  Nayl  v.  Small,  138  N.  W.  849, 
159  Iowa,  387;  Green  v.  Fist,  132  P.  179,  89  Kan.  536;  Duncan 
v.  Turner,  154  S.  W.  816,  171  Mo.  App.  661;  Tull  v.  Starmer, 
176  S.  W.  511,  188  Mo.  App.  713;  Ryer  v.  Ninningham,  75  A. 
890,  78  N.  J.  Law,  742;  Clark  v.  Rast  Lake  Lumber  Co.,  73  S. 
E.  793,  158  N.  C.  139;  Bailey  v.  Padgett,  70  S.  637,  195  Ala. 
203;  Posten  v.  Hall,  132  S.  W.  1001,  97  Ark.  23;  Watkins  v. 
Pashalinsky,  76  A.  1104,  83  Conn.  458,  20  Ann.  Gas.  1023;  Fin- 
nerty  v.  Stratton's  Est,  128  P.  667,  53  Colo.  17 ;  Shinn  v.  Evans, 
37  App.  D.  C.  304;  Realty  Bond  &  Finance  Co.  v.  Point  Rich- 
mond Canal  &  Land  Co.,  152  P.  413,  171  Cal.  238;  Home  Bank- 
ing &  Realty  Go.  v.  Baum,  82  A.  970,  85  Conn.  383 ;  Humphries 
&  Jackson  v.  Smith,  63  S.  E.  248,  5  Ga.  App.  340;  Kesler  v. 
Stultz,  84  S.  E.  201,  15  Ga.  App.  735;  Myers  v.  Buell,  142  111. 
App.  467;  Haynes  v.  Oliver,  154  111.  App.  639;  Reeve  v.  Fetzer, 
139  N.  W.  484,  —  Iowa  Sup.  — ;  Ketcham  v.  Axelson,  142  N.  W. 
62,  160  Iowa,  456;  Johnson  v.  Huber,  103  P.  99,  80  Kan.  571; 
C.  H.  Graves  &  Co.  v.  Cook,  131  N.  W.  854,  115  Minn.  34; 
Knight  v.  Brown,  147  N.  Y.  Sup.  628,  162  App.  Div.  438;  Levy 
v.  Dunken  Realty  Co.,  179  S.  W.  679,  —  Tex.  Civ.  App.  — ;  Low 
Moor  Iron  Co.  of  Va.  v.  Jackson,  84  S.  E.  100,  117  Va.  76; 
Smith  v.  Adelberg,  130  P.  494,  72  Wash.  434;  Fawver  v.  Fullin- 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  393 

gim,  149  S.  W.  746;  Pederson  v.  North  Yakima  &  East  Selah 
Irr.  Co.,  116  P.  279,  63  Wash.  636;  Simmons  v.  Oneth,  124  S. 
W.  534,  140  Mo.  App.  269 ;  Duke  v.  Graham,  143  N.  W.  817,  163 
Iowa,  272;  Eugill  v.  Weakley,  61  S.  E.  360,  64  W.  Va.  210,  15 
L.  E.  A.  (N.  S.),  1262;  Hicks  v.  Christeson,  164  P.  395,  —  Cal. 
Sup.  — ;  Ash  v.  Oppmann,  199  111.  App.  573;  Berry  v.  Hewitt, 
210  111.  App.  170;  Calvin  v.  Post  Mtge.  &  Loan  Co.,  122  N.  E. 
454,  225  1ST.  Y.  510,  rev  judg.,  159  N.  Y.  Sup.  361,  mot.  to  am. 
den.,  123  N.  E.  860;  Hartman  v.  Selling,  189  P.  887,  —  Or. 
Sup.  — .  See  also  Sec.  536. 

Where  the  contract  makes  the  right  to  commissions  dependent 
upon  consummation,  a  broker  can  not  recover  commissions  un- 
less the  contract  has  been  consummated  and  the  money  paid. 
Lindley  v.  Fay,  119  Cal.  239,  51  P.  333 ;  Bollard  v.  Shea,  121  111. 
App.  135;  Cremer  v.  Miller,  56  Minn.  52,  57  N.  W.  318;  West  v. 
Stoeckel,  6  Ohio  Dec.  (Eep.),  1082;  10  Am.  L.  E.  309;  Reichard 
v.  Wallach,  91  N.  Y.  S.  347;  Bishop  v.  Averill,  17  Wash.  209,  49 
P.  237,  50  P.  1024;  Power  v.  Kane,  5  Wis.  265;  Mills  v.  Hays, 
71  Pa.  Super.  Ct.  523. 

There  is  authority  to  the  effect  that  a  broker's  right  to  com- 
missions is  not  defeated  because  the  principal  is  unable  to  com- 
ply with  the  contract,  as  where  independent  of  the  broker  he 
has  previously  sold  the  property.  Lane  v.  Albright,  49  Ind. 
275 ;  Gregor  v.  McKee,  43  N.  Y.  S.  486,  18  Misc.  613 ;  Levy  v. 
Rathe,  39  N.  Y.  S.  1057,  17  Misc.  402;  Woodall  v.  Foster,  91 
Tenn.  195,  18  S.  W.  241. 

In  later  New  York  cases  the  doctrine  has  undergone  a  revi- 
sion, on  the  ground  that  the  owner  may  sell  his  premises  at 
any  time  and  to  any  customer  who  is  willing  to  buy  upon  his 
terms,  and  that  commissions  may  not  be  collected  for  customers 
produced  after  the  premises  have  been  sold.  Hodge  v.  Appellees, 
107  N.  Y.  S.  170,  122  App.  Div.  437;  Ettinghoff  v.  Harowitz, 
100  N.  Y.  S.  1002,  115  App.  Div.  571.  Compare  Sees.  454,  558. 

A  broker  employed  to  secure  a  loan  does  not  earn  his  com- 
missions by  merely  procuring  a  lender  who  offers  to  make  the 
loan,  but  who,  after  acceptance  by  the  borrower,  refuses  to 
consummate  the  transaction.  Ashfield  v.  Case,  87  N.  Y.  S. 
649,  93  App.  Div.  452;  Crasto  v.  White,  5  N.  Y.  S.  718,  52 
Hun,  473.  See  also  Sec.  466. 


394  AMERICAN   LAW   EEAL   ESTATE    AGENCY. 

To  entitle  a  real  estate  broker  to  his  commissions  he  must 
produce  a  person  who  actually  purchases  the  property  by 
complying  with  the  terms  agreed  upon,  unless  his  failure  to 
do  so  is  caused  by  the  fault  of  the  vendor.  Richards  v.  Jack- 
son, 31  Md.  250;  Briggs  v.  Howe,  1  Abb.  Dec.  (N.  Y.),  189,  4 
Keyes  424;  Gurnet  v.  Edling,  19  Tex.  Civ.  App.  711,  48  S.  W. 
775;  Parker  v.  Nat.  Bdg.,  etc.,  Assn.,  55  W.  Va.  134,  46  S. 
E.  811;  Myers  v.  Moore,  124  N.  W.  187,  85  Neb.  715;  Higen- 
botham  v.  McKenzie,  129  N.  W.  263,  88  Neb.  323;  Starbird  v. 
J.  H.  McShane  Timber  Co.,  142  N.  W.  683,  94  Neb.  79 ;  Hutch- 
ings  v.  McLaughlin,  149  S.  W.  833,  149  Ky.  366;  Hutchinson  v. 
Plant,  105  N.  E.  1017,  218  Mass.  148;  Schweld  v.  Storandt,  143 
N.  Y.  Sup.  161,  157  App.  Div.  855;  judg.  aff.,  112  N.  E.  1075, 
217  N".  Y.  637;  Heath  v.  Hoffhines,  152  S.  W.  176,  —  Tex.  Civ. 
App.  — ;  Avoid  v.  Oppenlieimer,  153  N.  Y.  Sup.  421;  Hix  v. 
Tomlinson,  200  S.  W.  897,  —  Tex.  Civ.  App.  — . 

A  broker  employed  to  effect  a  sale  is  not  entitld  to  commis- 
sions until  consummation.  Dorrington  v.  Powell,  52  Neb.  440, 
72  N".  W.  587;  Lyle  v.  Uni.  Land  &  Inv.  Co.  (Tex.  Civ.  App. 
'95),  30  S.  W.  723;  Smith  v.  Sharp  (Ala.  '09),  50  S.  381. 

A  broker  failing  to  show  a  completed  contract  between  the 
seller  and  the  buyer  is  not  entitled  to  commissions.  Reicherd 
v.  Wallach,  91  N.  Y.  S.  347.  A  broker  who  contracted  for  com- 
missions to  be  all  over  a  certain  net  selling  price,  required  a 
consummation  of  the  sale  to  earn  commissions.  Munroe  v.  Tay- 
lor, 191  Mass.  483,  78  N.  E.  106.  See  also  Sees.  119,  193, 
224,  272,  503. 

Completion  of  the  contract  falls  upon  the  owner  after  the 
broker  has  found  a  customer  ready  and  willing  to  buy,  where 
his  contract  is  to  find  a  purchaser.  Swigert  v.  Hawley,  40  111. 
App.  610,  reversed  on  other  grounds,  140  111.  185;  McCormick  v. 
Obanion,  153  S.  W.  267,  168  Mo.  App.  606;  Freeman  v.  Van 
Wagenan,  101  A.  55,  —  N".  J.  Sup.  — . 

When  broker  agrees  to  "secure"  an  exchange  of  land  within 
thirty  days,  he  has  done  his  part  by  bringing  the  parties  together 
so  that  his  principal  could  have  carried  through  the  deal  in  such 
time.  Turner  v.  Watkins,  172  P.  620,  —  Cal.  App.  — . 

Where  a  broker  employed  to  sell  property  on  a  commission 
found  a  prospective  purchaser,  but  was  unable  to  consummate  a 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  395 

sale,  and  the  owner  subsequently  sold  directly  to  a  third  person, 
who  secretly  bought  for  the  prospective  purchaser,  without  knowl- 
edge of  either  broker  or  owner,  the  broker  could  not  recover  a 
commission  from  the  owner  on  the  theory  that  the  third  person 
was  the  undisclosed  agent  of  the  prospective  purchaser,  since  this 
would  result  in  harm  to  the  innocent  owner.  Ritch  v.  Robertson, 
106  A.  509,  —  Conn.  Sup.  — . 

Where  a  broker  furnished  one  claiming  to  be  ready  to  pur- 
chase land  at  a  certain  price,  and  purchaser  and  owner  orally 
agreed  to  consummate  a  sale,  and  were  sent  by  the  broker  to  a 
bank  to  have  the  contract  prepared,  and  a  dispute  arose  concern- 
ing the  purchase  price,  and  the  deal  was  not  consummated,  the 
broker's  right  to  compensation  depended  on  whether  the  owner  or 
the  purchaser  was  at  fault  in  terminating  the  deal.  McLafferty  v. 
Payne,  215  S.  W.  680,  —  Ark  Sup.  — . 

Sec.  450.    Introduction  of  prospective  purchaser. 

The  introduction  by  a  broker  of  a  prospective  purchaser  to 
the  principal  held  sufficient  to  establish  a  contract  of  employ- 
ment. Carroll  v.  O'Shea,  19  N.  Y.  S.  374.  Introduction  to  the 
owner,  followed  by  a  sale,  entitles  the  broker  to  commissions, 
although  the  sale  is  made  for  a  less  price  and  upon  different 
terms.  Henry  v.  Stewart,  185  111.  448,  57  N.  E.  190;  Dean  v. 
Archer,  103  111.  App.  455;  Pete  v.  March,  65  111.  App.  482; 
Hafner  v.  Herron,  60  111.  App.  592,  affirmed  165  111.  242,  46 
N.  E.  211;  Gibson  v.  Hunt  (Iowa  Sup.  '03),  94  N.  W.  277; 
Driesback  v.  Rollins,  39  Kan.  268,  18  P.  187;  Schwartz  v. 
Yearly,  31  Md.  270 ;  French  v.  McKay,  181  Mass.  485,  63  N.  E. 
1068 ;  Desmond  v.  Stebbins,  140  Mass.  339,  5  N.  E.  150 ;  Reishus- 
Reimer  Land  Co.  v.  Benner,  91  Minn.  401,  98  N.  W.  186 ;  Haug 
v.  Haughan,  51  Minn.  558,  53  N.  W.  874;  Francis  v.  Baker,  45 
Minn.  83,  47  N.  W.  452 ;  Bailee  v.  McMaury,  113  Mo.  App.  253, 
88  S.  W.  157 ;  Vreeland  v.  Vetterlein,  33  N.  J.  L.  247 ;  Sibbald 
v.  Bethlehem  Iron  Co.,  83  N.  Y.  378;  Lloyd  v.  Matthews,  51 
N.  Y.  124;  Goodwin  v.  Brennecke,  47  N.  Y.  S.  266,  21  App. 
Div.  138 ;  Glentworth  v.  Luther,  21  Barb.  145 ;  Baker  v.  Thomas, 
31  N.  Y.  S.  993,  11  Misc.  112 ;  Van  Doren  v.  Jelleffe,  20  N.  Y.  S. 
636,  1  Misc.  354 ;  Turner  v.  Putnam,  13  N.  Y.  S.  567 ;  Rousch 


396  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

v.  Loeffler,  18  Ohio  Cir.  Ct.  806,  6  0.  Cir.  Dec.  760;  Insloe  v. 
Jones,  Brightly  (Pa.),  76;  Haines  v.  Signer,  9  Phila.  (Pa.),  51; 
Smith  v.  Sharp  (Ala.  Sup.  '09),  50  S.  381;  Beogher  v.  Clark, 
106  P.  39,  81  Kan.  250,  27  L.  E.  A.  (N.  S.)  198;  Prov.  Trust 
Co.  v.  Darrough,  78  N.  E.  1030,  168  Ind.  29 ;  Burdett  v.  Parish, 
172  S.  W.  620,  185  Mo.  App.  605 ;  Ryan  v.  Walker,  169  P.  417, 
—  Cal.  App.  — ;  Bal  Car  Wheel  Co.  v.  Clinic,  104  A.  357,  —  Md. 
Sup.  — . 

A  broker  is  entitled  to  commissions,  although  he  took  no  part 
in  the  negotiations,  where  a  sale  resulted  from  his  introducing  a 
customer  to  the  owner;  irrespective  of  the  purchase  price,  and 
although  the  sale  was  made  by  the  owner.  Holland  v.  Howard, 
105  Ala,  538,  17  S.  35;  Snyder  v.  Fearer,  87  111.  App.  275; 
Keeler  v.  Grace,  27  111.  App.  427;  Henderson  v.  Collins,  69 
Iowa,  51,  28  N.  W.  431;  Jones  v.  Adler,  34  Md.  440;  Delta,  etc., 
Land  Co.  v.  Wallace,  83  Miss.  656,  36  S.  263;  Timberman  v. 
Craddock,  70  Mo.  638 ;  Crone  v.  Miss.  Valley  Trust  Co.,  85  Mo. 
App.  601;  Bass  v.  Jacobs,  63  Mo.  App.  393;  Jones  v.  Berry , 
37  Mo.  App.  125;  Nicholas  v.  Jones,  23  Neb.  813,  37  N.  W.  679  j 
Butler  v.  Kennard,  23  Neb.  357,  36  N.  W.  579 ;  Potvin  v.  Cur 
ran,  13  Neb.  302,  14  N.  W.  400;  Lloyd  v.  Matthews,  51  N.  Y. 
124;  Gillen  v.  Wise,  14  Daly  (N.  Y.)  480,  15  N.  Y.  St.  367; 
Hanford  v.  Shafter,  4  Daly,  243;  Ludlow  v.  Carman,  2  Hilt. 
(N,  Y.)  107;  O'Toole  v.  Tucker,  38  N.  Y.  S.  969,  16  Misc.  485, 
affirmed  40  N.  Y.  S.  695,  17  Misc.  554;  Fidelity  Ins.  Co.'s  Ap- 
peal, 161  Pa.  St.  177,  28  A.  1079;  Gibson's  Est.,  3  Pa.  Dist 
147,  14  Pa.  Co.  Ct.  241 ;  Scott  v.  Clark,  3  S.  D.  486,  54  N.  W. 
538;  Royster  v.  Magaveny,  9  Lea  (Tenn.)  148;  Arrington  v. 
Gary,  5  Baxt.  (Tenn.),  609;  Engelstein  v.  Barthalomae,  188  111. 
App.  562;  Hamilton  v.  Davison,  153  S.  W.  277,  168  Mo.  App. 
620;  Forbes  v.  Arizona  Parral  Mining  Co.,  135  P.  715,  15  Ariz. 
30. 

The  broker  who  first  introduced  a  prospective  purchaser  to  the 
owner  was  held  to  be  entitled  to  commissions  on  a  sale  made 
through  another.  Crone  v.  Miss.  Valley  Trust  Co.,  85  Mo.  App. 
601.  A  broker  is  not  entitled  to  compensation  for  merely  intro- 
ducing a  purchaser  to  the  owner,  in  the  absence  of  a  contract  of 
employment,  unless  his  character  as  agent  was  known  or  disclosed 
at  the  time.  Keener  v.  Harrod,  2  Md.  63.  See  also  Sec.  68. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  397 

A  real  estate  broker's  contract  is  completed,  and  he  is  entitled 
to  compensation,  even  though  he  is  employed  for  the  purpose  of 
selling,  when  he  has  introduced  a  purchaser,  and  his  principal 
chooses  to  waive  that  requirement  and  enters  into  an  option  con- 
tract. In  such  case  the  courts  allow  some  compensation  upon  the 
basis  of  the  amount  paid.  Nayliew  v.  Brislin,  108  P.  253,  13 
Ariz.  102. 

Where  a  sale  was  made  to  the  person  introduced,  but  at  a  price 
lower  than  that  first  suggested,  because  only  a  portion  of  the  prop- 
erty was  covered  in  the  final  transaction,  it  did  not  constitute  a 
new  deal  brought  about  solely  by  the  owner  himself.  Burger  v. 
Cole,  194  P.  611,  —  Colo.  Sup.  — . 

Sec.  450a.     Broker  entitled  to  compensation  on  furnishing 
name  of  prospective  purchaser  to  owner. 

A  broker  who  furnishes  the  name  of  a  purchaser  to  the  owner, 
while  the  former  is  willing  to  execute  a  binding  contract,  is  not 
chargeable  with  failure  to  procure  such  contract  so  as  to  lose  his 
right  to  compensation.  W.  T.  Craft  Realty  Co.  v.  Livernash,  146 
P.  121,  27  Colo.  App.  1. 


CHAPTER  IV. 

SECTION.  8ECTION. 

461.    Effect  of  representations  as  to  451b.  Sufficient  description  of  property 
the  dimensions  of  the  property  as  required  by  statute, 

offered.  452.    Purchaser  acting  for  another. 

451a.  Owner  bound  by  representation  453.    Apportionment. 

of  location  of  land  to  purchaser  454.     Defeat  of  broker's  right  to  corn- 
by  his  agent.  missions 

Sec.  451.    Effect  of  representations  as  to  dimensions  of  the 
property  offered. 

Defendant  employed  plaintiff  to  sell  a  piece  of  property 
for  her  representing  to  him  that  it  was  seventy-six  feet  in 
depth.  Plaintiff  procured  a  purchaser  to  whom  defendant 
made  the  same  representations,  and  on  his  discovering  that 
the  lot  was  in  reality  but  sixty-six  feet  deep  he  refused  to  com- 
plete the  purchase.  Held,  that  plaintiff  was  not  entitled  to 
commissions.  Hausman  v.  Herdtfelder,  80  N.  Y.  S.  1039,  81 
App.  Div.  46 ;  Diamond  v.  Hartley,  55  N.  Y.  S.  994,  61  N.  Y.  S. 
1022,  38  App.  Div.  87,  47  App.  Div.  1.  See  also  Sec.  183,  435. 

In  an  action  by  a  broker  to  recover  commissions  for  procur- 
ing a  loan,  it  appeared  that  the  written  portion  of  the  applica- 
tion for  the  loan  was  filled  in  by  the  broker,  and  that  he  was 
aware,  when  defendant  signed  the  application,  that  defendant 
was  uncertain  as  to  the  exact  dimensions  of  the  lot  on  which 
security  was  to  be  given,  though  the  dimensions  were  stated  in 
the  application,  and  the  loan  was  rejected  because  the  dimen- 
sions were  not  correctly  given.  Held,  that  inasmuch  as  the 
broker  was  equally  responsible  with  the  defendant  for  not  dis- 
closing the  situation  to  the  lender  and  for  their  refusal  to  make 
the  loan,  he  could  not  recover.  Diamond  v.  Harley,  61  N.  Y.  S. 
1022,  47  App.  Div.  1. 

Where  a  vendee  refused  to  complete  a  contract  for  the  sale 
of  land  by  reason  of  an  alleged  deficiency  in  quantity,  but  it 
was  shown  that  the  contract  written  by  one  of  the  vendor's 
brokers  contained  a  mistaken  description  "and  included  land 
which  the  vendor  did  no;t  own,  without  his  knowledge  and  con- 

398 


COMMISSION-  AND  COMPENSATION"  OF  AGENTS.  399 

sent,  but  by  reason  of  the  receding  of  a  lake  on  which  the  land 
bordered,  the  farm  contracted  to  be  conveyed  actually  con- 
tained more  than  the  number  of  acres  specified,  the  brokers 
were  not  entitled  to  a  commission.  Scott  v.  Gage,  16  S.  D.  285, 
92  N.  W.  37. 

Where  the  principal  gives  the  broker  a  card  describing  the 
lot  as  twenty-three  feet  wide,  and  the  broker  in  good  faith 
makes  this  statement  to  a  prospective  purchaser,  and  the  sale 
falls  through  because  the  true  width  of  the  lot  falls  short  five 
inches,  the  broker  was  held  entitled  to  recover  his  commis- 
sions. Cohen  v.  Farley,  58  N.  Y.  S.  1102,  28  Misc.  168;  Sullivan 
v.  Brown,  64  S.  455,  67  Fla.  133 ;  Schward  v.  Storandt,  143  N.  Y. 
Sup.  161,  157  App.  Div.  855,  judg.  aff.  112  N.  E.  1075,  217  N. 
Y.  637;  Keough  v.  Mayer,  111  N.  Y.  Sup.  1,  127  App.  Div.  273; 
Sokolski  v.  Bleistift,  129  N.  Y.  Sup.  26.  This  conflicts  with 
other  decisions  in  the  same  jurisdiction.  Hausman  v.  Herdtf  elder, 
80  N.  Y.  S.  1039,  81  App.  Div.  46;  Diamond  v.  Hartley,  61  N. 
Y.  S.  1022,  47  App.  Div.  1. 

Where  a  real  estate  broker  procures  a  purchaser  of  land  at 
the  agreed  price,  and  the  owner  sells  to  him;  on  discovering 
that  the  land  does  not  contain  the  supposed  number  of  acres 
the  broker  is  entitled  to  his  commissions  at  the  agreed  rate  on 
the  latter  sum.  Hoefling  v.  HaUeton,  84  Tex.  517,  19  S.  W.  689. 
On  the  other  hand,  another  court  holds,  where  the  terms  of  sale 
are  fixed  by  the  vendor,  in  accordance  with  which  the  broker 
undertakes  to  produce  a  purchaser,  and  upon  the  procurement 
of  a  purchaser,  the  vendor  voluntarily  reduces  the  price  of  the 
property,  or  the  quantity,  or  otherwise  changes  the  terms  of 
sale  as  proposed  to  the  broker,  so  that  a  sale  is  made,  or  terms 
or  conditions  are  offered  which  the  proposed  buyer  is  ready 
and  willing  to  accept,  the  broker  will  be  entitled  to  his  commis- 
sions at  the  rate  specified  in  his  agreement  with  the  principal. 
Steivart  v.  Mather,  32  Wis.  344.  Compare  Bowman  v.  Hart- 
man,  27  0.  Cir.  Ct.  309.  Contra,  Sec.  422. 

In  an  action  by  a  real  estate  agent  to  recover  commissions 
earned,  on  the  ground  that  the  purchaser  refused  to  take  the 
property  on  account  of  false  representations  of  the  length  of 
the  lot,  a  verdict  for  defendant  is  clearly  right,  where  it 
appears  that  the  purchaser  knew  the  exact  length  of  the  lot 


400  AMERICAN  LAW  SEAL  ESTATE  AGENCY. 

before  he  agreed  to  purchase.  Sloman  v.  Bodwell,  24  Neb.  790, 
40  N.  W.  321.  The  same  is  true  where  the  broker  knew  the  size 
of  the  lot.  Eeough  v.  Meyer,  111  N.  Y.  S.  1,  127  App.  Div.  273. 
Where  plaintiff  agreed  with  defendant  to  procure  for  him  a 
person  who  would  negotiate  for  the  purchase  of  his  property, 
and  he  did  procure  such  a  person,  and  negotiations  were  en- 
tered into  and  carried  on,  but  resulted  in  a  sale  of  a  less  amount 
of  property  than  was  contemplated  in  the  agreement  under 
which  plaintiff  undertook  to  procure  such  purchaser,  he  was 
entitled  to  recover  commissions  on  the  quantity  sold.  Bowman 
v.  Hartman,  27  0.  Cir.  Ct.  309.  Compare  Stewart  v.  Mather, 
32  "Wis.  344.  Broker  entitled  to  commission  where  sale  was 
defeated  by  misrepresentation  made  to  the  purchaser  by  an 
employe  of  the  seller.  Hugill  v.  Weekley,  64  W.  Va.  210,  61 
S.  E.  360,  15  L.  R.  A.,  N.  S.  1262. 

A  real  estate  broker  employed  to  divide  a  tract  into  lots  of 
specified  dimensions,  and  sell  the  same  for  a  commission  in  ex- 
cess of  the  specified  sum,  may  not  divide  the  tract  into  lots  of 
different  dimensions,  where  it  is  impracticable  to  divide  but  into 
lots  of  the  specified  dimensions,  and  where  the  owner  refuses  to 
permit  the  division,  the  broker  may  not  recover  commissions. 
Hutchings  v.  NcLaugJilin,  149  S.  W.  833,  149  Ky.  366. 

Where  a  seller  and  purchaser  entered  into  a  written  contract, 
whereby  the  seller  agreed  to  convey  the  property  in  consideration 
that  the  purchaser  would  convey  to  defendant  other  property  de- 
scribed as  being  of  certain  dimensions,  more  or  less;  held,  plain- 
tiffs were  entitled  to  commissions,  notwithstanding  the  purchaser 
and  seller  were  mutually  mistaken  as  to  the  dimensions  of  the 
property  to  be  conveyed  by  the  purchaser.  Regelin  v.  Conran, 
184  111.  App.  570. 

Where  a  vendor  of  land  signed,  at  the  request  of  the  broker,  a 
memorandum  describing  the  property  to  be  sold,  and  refused  to 
sign  a  contract  varying  that  description,  he  was  not  bound  to 
prepare  and  present  another  contract  which  he  would  sign,  the 
memorandum  affording  the  broker  a  sufficient  description.  Ab- 
bott v.  Lee,  85  A.  526,  86  Conn.  392. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  401 

Sec.  451a.     Owner  bound  by  representation  of  location  of 
land  to  purchaser  by  his  agent. 

Purchaser  of  land  could  rely  upon  the  representations  of  the 
seller's  agent  as  to  the  true  location  of  the  land,  such  representa- 
tions being  within  the  ordinary  scope  of  the  authority  of  real 
estate  brokers.  Firebaugli  v.  Bentley,  130  P.  1129,  65  Or.  179. 

Sec.  451b.    Sufficient  description  of  property  as  required  by 
statute. 

Transaction  of  broker  to  sell  real  estate,  required  by  Civil  Code, 
Sec.  1624,  subd.  6  to  be  in  writing;  held,  to  sufficiently  describe 
the  property,  stating  county,  street  and  road,  with  acreage,  and  a 
specific  description  of  the  character  of  improvements  thereon. 
Anderson  v.  Wilstrup,  168  P.  1150,  —  Cal.  App.  — . 

Sec.  452.    Purchaser  acting  for  another. 

The  fact  that  the  purchaser  secured  by  the  real  estate  broker 
was  acting  in  behalf  of  another,  does  not  affect  the  broker's 
right  to  a  commission,  if  the  purchaser  was  able,  ready  and 
willing  to  buy  on  the  terms  authorized  by  the  principal,  and 
no  binding  written  contract  of  sale  is  required.  Gelott  v.  Ridge, 
117  Mo.  553,  23  S.  W.  882.  See  also  Sec.  487. 

Failure  of  a  broker  to  disclose  to  the  vendors  that  the  pur- 
chaser was  acting  as  the  agent  for  an  undisclosed  principal, 
does  not  affect  the  broker's  right  to  commissions,  the  purchaser 
being  financially  able  to  carry  out  his  contract,  so  that  the 
vendors  are  not  injured.  Lawlcr  v.  Armstrong  (Wash.  Sup. 
'09),  102  P.  775. 

Sec.  453.    Apportionment. 

Where  the  evidence  shows  that  defendant's  contract  to  pay 
plaintiff  certain  commissions  for  the  sale  of  lands  is  either  a 
joint  contract  with  that  of  other  owners  of  the  land  or  his  indi- 
vidual contract,  the  court  properly  refused  to  charge  that  de- 
fendant is  only  liable  for  his  share  of  the  commission  to  the 
extent  of  his  individual  interest.  Their  liabilities  can  not  be 
apportioned.  Mousseau  v.  La  Roche,  80  Ga.  568,  5  S.  E.  780. 


402  AMERICAN  LAW  REAI,  ESTATE  AGENCY. 

Sec.  454.    Defeat  of  broker's  right  to  commissions. 

A  real  estate  agent  who  carries  on  the  negotiations  between 
the  parties  and  finally  brings  them  together,  is  entitled  to  his 
commissions,  though  the  trade  is  eventually  effected  by  the 
owner  himself  or  by  a  third  person  acting  for  him.  Larson  v. 
Thoma  (Iowa  Sup.  '09),  121  N.  W.  1059;  Scott  v.  Patterson,  53 
Ark.  49,  13  S.  W.  419;  Hancock  v.  Stacey  (Tex.  Civ.  App. 
'09),  116  S.  W.  177;  Howe  v.  Werner,  1  Col.  App.  530,  44  P. 
511 ;  Gresham  v.  Connelly,  114  Ga.  906,  41  S.  E.  42 ;  Button  v. 
Renner,  74  111.  App.  124 ;  Ellis  v.  Dunsworth,  49  111.  App.  187 ; 
Gibson  v.  Hunt  (Iowa  Sup.  '03),  94  N.  W.  277;  Hubbard  v. 
Letter,  145  Mich.  387,  108  N.  W.  735,  13  D.  L.  N.  477;  Hedden 
v.  Shepherd,  29  N.  J.  L.  334;  Somers  v.  Westcott,  66  N.  J.  L. 
551,  49  A.  462;  Woolley  v.  Loew,  80  Hun,  294,  30  N.  Y.  S.  86; 
Carroll  v.  Pettit,  67  Hun,  418,  22  N.  Y.  S.  250;  Chilton  v. 
Butler,  1  E.  D.  Smith  (N.  Y.)  150;  Esmond  v.  Kingsley,  3  N. 
Y.  S.  696;  Lynch  v.  McKenno,  58  How.  Pr.  (N.  Y.)  42;  Keys 
v.  Johnson,  68  Pa.  St.  42 ;  Sylvester  v.  Johnson,  110  Tenn.  392, 
75  S.  W.  923;  Van  Tobel  v.  Stetson,  etc.,  Mill  Co.,  32  Wash. 
683,  73  P.  788;  Day  v.  Porter,  161  111.  235,  43  N.  E.  1073; 
Church  v.  Dunham,  14  Idaho,  776,  96  P.  203,  205;  Jennings 
v.  Trumin,  52  Ore.  149,  96  P.  874;  Masters  v.  Hunt,  192  S.  W. 
219,  --  Tex.  Civ.  App.  — ;  Regner  v.  Mackrill,  164  N".  W.  335, 
—  Iowa  Sup.  — ;  Ritch  v.  Robertson,  106  A.  509,  —  Conn.  Sup. 
— ;  Bauer  v.  Crew,  221  S.  W.  936,  —  Tex.  Civ.  App.  — . 

After  the  principal  and  the  customer  found  by  the  broker 
agree  uponi  terms,  the  broker's  right  to  a  commission  can  not  be 
defeated  by  the  principal's  transferring  the  property  indirectly 
by  a  deed  to  a  third  person  who  reconveyed  to  the  broker 's 
customer.  Williams  v.  Bishop,  11  Colo.  App.  378,  53  P.  289; 
Barnett  v.  Gluting,  3  Ind.  App.  415,  29  N.  E.  154,  927 ;  Steidl 
v.  McClymonds,  90  Minn.  205,  95  N.  W.  906;  Burke  v.  Cogs- 
well, 39  Minn.  344,  40  N.  W.  251 ;  Oarvin  v.  Abels-Gold  R.  Co., 
110  N.  Y.  S.  582,  126  App.  Div.  329 ;  Martin  v.  Fegan,  88  N. 
Y.  S.  472,  95  App.  Div.  154 ;  Minister  v.  Benoliel,  66  N.  Y.  S. 
943,  32  Misc.  630,  reversed  on  other  grounds,  67  N.  Y.  S,  1044, 
33  M.  586 ;  Konner  v.  Anderson,  66  N.  Y.  S.  338,  32  Misc.  511 ; 
Fox  v.  Byrnes,  52  N.  Y.  Super.  Ct.  150.  Compare  Sec.  425a. 


COMMISSION"  AND  COMPENSATION  OF  AGENTS.  403 

Nor  by  an  agreement  declaring  the  sale  off.  O'Neill  v. 
'Printz,  115  Mo.  App.  215,  91  S.  W.  174.  In  order  to  defeat 
the  broker's  right  to  a  commission,  the  principal  must  have 
substantial  ground  for  refusing  to  complete  the  transaction, 
and  have  done  nothing  to  estop  setting  it  up.  Alabama  Loan 
Co.  v.  Deans,  94  Ala.  377,  11  S.  17;  Fiske  v.  Soule,  87  Cal. 
313,  25  P.  430;  Cawker  v.  Apple,  15  Colo.  141,  25  P.  181; 
Peabody  v.  Dewey,  51  El.  App.  260,  affirmed  153  111.  657,  37 
N.  E.  977,  27  L.  R.  A.  322 ;  Indiana  Ber.  Asp.  Co.  v.  Robinson, 
29  Ind.  App.  59,  63  N.  E.  797 ;  Felts  v.  Butcher,  93  Iowa,  414, 
61  N.  W.  991;  Hayden  v.  Grillo,  35  Mo.  App.  647;  Bailey  v. 
Chapman,  41  Mo.  536 ;  Hartford  v.  M cGillicuddy ,  103  Md. 
224,  68  A.  860;  Carpenter  v.  Bynders,  52  Mo.  278;  Blaydos 
v.  Adams,  35  Mo.  App.  526 ;  Goodson  v.  Embleton,  106  Mo. 
App.  77,  80  S.  W.  22;  Finke  v.  Menke,  67  N.  Y.  S.  954,  33  Misc. 
769;  Ernst  v.  Loeb,  108  N.  Y.  S.  631;  Kirwan  v.  Barney,  61 
N.  Y.  S.  122,  29  Misc.  614;  Friend  v.  Jetter,  43  N.  Y.  S.  287, 
19  Misc.  101;  Delaplane  v.  Turney,  44  Wis.  31;  Greenwald  v. 
Rosen,  113  N.  Y.  S.  764,  61  Misc.  260;  Becker  v.  Holleson,  198 
ill.  App.  180;  Bruce  v.  Meserve,  117  N.  E.  830,  —  Mass.  Sup.  — . 

The  fact  that  the  principal  does  not  own  the  property  which 
he  employs  the  broker  to  sell  does  not  defeat  the  broker's  right 
to  compensation  on  procuring  a  purchaser.  Smith  v.  Schiele, 
93  Cla.  144,  28  P.  857.  Where,  at  the  date  of  the  contract  of 
employment  the  principal  had  only  an  option  on  the  land,  or 
for  any  other  reason  can  not  avail  himself  of  the  offer  procured 
by  the  broker.  Monk  v.  Parker,  180  Mass.  246,  63  N".  E.  793; 
Koslove  v.  Dittmeier,  203  S.  W.  499,  -  -  Mo.  App.  — .  False 
representations  of  the  broker  concerning  the  property  which  he 
was  negotiating  to  sell  do  not  defeat  his  right  to  commissions 
where  it  appears  that  the  purchaser,  under  the  contract  of  sale, 
made  independent  inquiries  as  to  the  subject  of  the  representa- 
tions. Friend  v.  Jette,  41  N.  Y.  S.  560,  18  Misc.  368.  Where  a 
principal  made  false  representations  that  defeated  a  sale  made  by 
the  broker,  this  did  not  deprive  the  broker  of  his  commissions. 
Glentworth  v.  Luther,  21  Barb.  (1ST.  Y.),  145.  Compare  Crockett 
v.  Grayson,  98  Va.  354,  36  S.  E.  477.  See  also  Sec.  313. 

A  vendor  can  not  escape  liability  to  the  broker  for  commis- 
sions by  himself  completing  a  sale  to  a  purchaser  with  whom 


404  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

the  broker  had  been  negotiating,  by  including  in  the  sale  other 
lands  in  addition  to  those  the  broker  was  employed  to  sell. 
Ransom  v.  Weston,  110  Mich.  240,  68  N.  W.  152.  Where  a 
broker  is  employed  to  sell  land,  and  when  his  negotiation  is 
nearly  finished  the  owner  limits  the  time  within  which  a  sale 
must  be  made  and  notice  be  sent  to  him,  and  the  agent  makes 
a  sale  without  delay  and  sends  notice  to  the  principal  within 
the  time  limited,  that  being  all  that  was  required  of  the  broker 
under  the  contract,  the  miscarriage  of  the  notice  does  not  de- 
prive the  agent  of  his  commission.  Gibbons  v.  Sherwin,  28 
Neb.  146,  44  N.  W.  99.  Where  the  authority  conferred  on  the 
broker  to  sell  lands  is  limited  in  time,  the  agent  will  be  en- 
titled to  his  commission  if  within  that  time  he  procures  a  pur- 
chaser with  whom  his  principal  enters  into  a  binding  contract 
of  sale  and  purchase,  although  the  conveyance  of  the  lands 
is  not  made  until  after  the  time  allowed  has  elapsed.  Crowley 
Co.  v.  Meyers,  69  N.  J.  L.  245,  55  A.  305;  Cody  v.  Dempsey, 
83  N.  Y.  S.  899,  86  App.  Div.  335. 

Defendant  placed  his  ranch  in  plaintiffs'  hands  to  sell  on 
commission  within  a  specified  time;  they  found  a  purchaser 
who  paid  to  defendant  part  of  the  purchase  money,  and  ten- 
dered the  balance  in  checks,  which  defendant  refused;  after 
the  time  specified  had  expired,  defendant,  without  returning 
the  partial  payment,  conveyed  the  ranch  to  his  father,  who 
conveyed  it  to  the  purchaser  on  payment  of  the  balance  of 
the  agreed  price,  defendant  saying  at  the  time  that  he  did  not 
intend  to  pay  plaintiffs  any  commissions.  Held,  that  the  plain- 
tiffs were  entitled  to  their  commissions,  the  sale  being  made 
to  their  purchaser,  and  defendant  not  having  repudiated  the 
original  contract  of  sale  by  returning  the  money  paid  upon 
it.  Wilson  v.  Sturgis,  71  Cal.  226,  16  P.  772. 

In  an  action  by  a  real  estate  agent  to  recover  commissions 
for  trading  defendant's  house  and  lot,  where  it  appears  that 
part  of  the  consideration  to  be  paid  by  the  purchaser  was  a 
horse,  and  that  defendant  objected  to  the  price  placed  on  it, 
and  agreed  to  take  it  if  a  reduction  was  made,  and  thereafter, 
without  notice,  traded  the  house  and  lot  to  a  third  person, 
a  verdict  for  plaintiff  is  sustained  by  the  evidence.  Tubbs  v. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  405 

Mackintosh,  31  Neb.  238,  47  N.  W.  854;  West  v.  Lynch,  1  City 
Ct.  R.  (N.  Y.),  225.  See  also  Sec.  434. 

One  who  employs  a  broker  to  negotiate  a  sale  can  not,  in  an 
action  for  commissions,  avail  himself  of  the  objection  that  the 
customer  is  not  able  to  pay  for  the  premises,  if  the  vendor  has 
accepted  the  customer  as  satisfactory  and  has  conveyed  the  prem- 
ises to  him.  Travis  v.  Graham,  48  N.  Y.  S.  736,  23  App.  Div. 
214. 

Where  a  principal  in  an  exchange  of  properties  actually  receives 
a  good  title  to  the  property  conveyed  to  him,  he  can  not  defeat 
an  action  by  his  broker  for  commissions  on  the  ground  that  his 
contract  of  sale  was  invalid.  Sclilesinger  v.  Jud,  70  N.  Y.  S.  616, 
61  App.  Div.  453.  Compare  Sec.  433. 

Where  the  owner  enters  into  a  contract  authorizing  a  real 
estate  agent  to  sell  his  land  on  commission,  within  a  certain 
time,  he  can  not  revoke  the  authority  and  escape  liability  to 
the  agent,  if  he  secures  a  purchaser  before  the  time  limited, 
as  the  result  of  efforts  commenced  before  such  revocation. 
Blumenthal  v.  Goodall,  89  Cal.  251,  26  P.  906 ;  Glover  v.  Hen- 
derson, 170  Mo.  367,  25  S.  W.  175;  Stamets  v.  Dennison,  193 
Pa.  St.  548,  44  A.  575 ;  Harrison  v.  Angerson,  115  111.  App.  226. 
(There  are  authorities  holding  that  the  owner  has  power  to 
rescind,  subject  to  the  right  of  the  broker  to  bring  an  action 
for  breach  of  the  contract.) 

Where  a  broker  employed  to  bring  about  a  sale  of  real  es- 
tate, brought  to  the  owner  a  responsible  purchaser  willing  to 
take  the  premises  on  the  terms  outlined  by  the  owner,  the 
broker  was  entitled  to  his  commissions,  although  the  sale  fell 
through  because  the  owner  could  not  give  immediate  posses- 
sion as  he  had  agreed  to  do.  Putter  v.  Berger,  88  N.  Y.  S. 
462,  95  App.  Div.  62 ;  Bruce  v.  Dralce,  70  S.  273,  195  Ala.  236. 

Where  a  broker  has  lands  placed  in  his  hands  for  sale  at  a 
certain  price,  and  the  proposed  purchaser  does  not  want  the 
entire  tract,  and  the  broker  induces  an  employe  to  purchase 
what  remained,  and  the  principal,  to  escape  paying  commis- 
sions, conveys  the  whole  tract  to  the  employe,  who  conveys 
to  the  purchaser  the  portion  he  desires,  the  latter  assuming  a 
proportionate  amount  of  the  purchase  money  notes,  the  broker  is 
entitled  to  his  commissions.  Bogart  v.  McWilliams  (Tex.  Civ. 


406  AMERICAN   LAW   REAL  ESTATE   AGENCY. 

App.  '95),  31  S.  W.  434;  Diamond  v.  Wheeler,  80  K  Y.  S.  416, 
80  App.  Div.  58. 

The  principal  can  not  defeat  the  broker's  right  to  compen- 
sation by  arbitrary  or  wanton  refusal  to  consummate  the  sale. 
Merriman  v.  Wickersham,  141  Cal.  567,  75  P.  180;  Phelps  v. 
Prusch,  83  Cal.  626,  23  P.  1111;  Nielson  v.  Lee,  60  Cal.  555; 
Phelan  v.  Gardner,  43  Cal.  306 ;  Millett  v.  Barth,  18  Colo.  112, 
31  P.  769 ;  Spalding  v.  Saltiel,  18  Colo.  86,  31  P.  486 ;  Finnerty 
v.  Fritz,  5  Colo.  174;  Wolver  v.  Shandy,  66  111.  App.  42;  Hecht 
v.  Hall,  62  111.  App.  100;  McGuire  v.  Carlson,  61  IU.  App.  295; 
Flood  v.  Leonard,  44  111.  App.  113;  Heaton  v.  Clarke,  122 
Iowa,  716,  98  N.  W.  597 ;  Lewis  v.  Simpson,  122  Iowa,  663,  98 
N.  W.  508;  Collins  v.  Padden,  120  Iowa,  381,  94  N.  W.  905; 
Bird  v.  Phillips,  115  Iowa,  703,  87  N.  W.  414;  Houston  v.  Bo- 
agni,  McGloin  (La.),  164;  Schwartz  v.  Yearly,  31  Md.  270; 
Gwinnup  v.  Sibert,  106  Mo.  App.  709,  80  S.  W.  589;  Reeves 
v.  Vette,  62  Mo.  App.  440;  Gaty  v.  Foster,  18  Mo.  App.  639; 
Jones  v.  Stevens,  36  Neb.  849,  55  N.  W.  251 ;  Mooney  v.  Elder, 
56  N.  Y.  238;  Barnard  v.  Monnott,  1  Abb.  Dec.  (N.  Y.)  108, 
3  Keyes,  203,  33  How.  Pr.  440 ;  Snydam  v.  Healy,  87  N.  Y.  S. 
669,  93  App.  Div.  396;  Smith  v.  Smith,  1  Sweeney  (N.  Y.), 
552;  Hayne  v.  O'Connor,  1  Sweeney  (N.  Y.),  472,  41  How. 
Pr.  287;  Simpson  v.  Smith,  36  Misc.  815,  74  N.  Y.  S.  849; 
York  v.  Nash,  42  Ore.  321,  71  P.  59 ;  Fisk  v.  Henare,  13  Ore. 
156,  9  P.  322;  Haskins  v.  Lewis,  30  Ohio  Cir.  Ct.  603;  Hunt- 
emer  v.  Arent,  16  S.  D.  465,  93  N.  W.  653 ;  McLane  v.  Goode 
(Tex.  Civ.  App.  '02),  68  S.  W.  707;  Magill  v.  Stoddard,  70 
Wis.  75,  35  N.  W.  346;  Koch  v.  Emmerling,  63  U.  S.  (22  How.) 
69 ;  Greenwood  v.  Burton,  27  Neb.  808,  44  N.  W.  28 ;  Bond  v. 
Webster,  128  Wis.  118,  107  N.  W.  23;  Witherell  v.  Murphy, 
147  Mass.  417,  18  N.  E.  215;  Herridc  v.  Maness,  127  S.  W.  394, 
142  Mo.  App.  399;  Chandler  v.  Games-Ferguson  Realty  Co.,  224 
S.  W.  484,  —  Ark.  Sup.  — . 

After  notice  that  the  broker  has  a  customer,  the  principal 
can  not  sell  to  another,  and  thus  escape  the  payment  of  the 
commission.  Phelan  v.  Gardner,  43  Cal.  306;  Showaker  v. 
Kelly,  21  Pa.  Super.  Ct.  390;  Sullivan  v.  Hampton  (Tex.  Civ. 
App.  '95),  32  S.  W.  235;  Frinck  v.  Gilbert  (Wash.  Sup.  '09), 
101  P.  1088.  But  see  where  principal  refused  offer  and  sold 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  407 

to  same  party  for  twice  as  much,  and  broker  was  held  not 
entitled  to  commissions.  Gardner  v.  Pierce,  116  N.  Y.  S.  155. 
See  Sec.  15. 

The  refusal  of  the  wife  to  join  in  a  deed  of  conveyance  is 
insufficient  to  excuse  the  husband  and  principal  for  failing  to 
carry  out  the  sale  so  as  to  defeat  the  broker's  right  to  a  com- 
mission for  finding  a  purchaser.  Hamlin  v.  Schulte,  34  Minn. 
534,  27  N.  W.  301.  Goldberg  v.  Gelles,  68  N.  Y.  S.  400,  33 
Misc.  797;  Clapp  v.  Hughes,  1  Phila.  (Pa.)  382.  The  same 
rule  was  applied  where  the  sale  failed  because  the  husband 
and  wife  could  not  agree  as  to  a  division  of  the  purchase 
money.  Purdy  v.  Wilson,  130  Mo.  App.  150,  108  S.  W.  1124. 

Where  a  broker  found  a  purchaser  his  agency  closed,  and 
his  afterwards  taking  a  retainer  from  the  purchaser  to  see  that 
the  papers  were  properly  executed  presented  no  ground  for 
defeating  a  recovery  of  his  commissions.  Short  v.  Millard,  68 
111.  292.  See  also  Sec.  559. 

While  an  agency  for  the  sale  of  a  certain  lot  was  terminated 
by  a  sale  of  the  property  to  one  with  whom  the  agent  had 
commenced  negotiations,  this  did  not  defeat  the  agent's  right 
to  his  commissions.  Sylvester  v.  Johnson,  110  Tenn.  392,  75 
S.  W.  923.  Compare  Sec.  449. 

Where,  in  an  action  by  a  real  estate  broker  for  compensa- 
tion for  procuring  a  purchaser,  it  appeared  that  a  memoran- 
dum as  to  the  purchase  had  been  made  between  the  principal 
and  the  purchaser,  calling  for  the  execution  of  a  completed 
contract  at  a  specified  time  and  place,  evidence  was  admissible 
as  to  what  occurred  at  such  time  and  place,  showing  that  the 
non-execution  of  the  contract  was  due  to  the  principal.  Seid- 
man  v.  Banner,  99  N.  Y.  S.  862,  51  Misc.  10. 

A  broker's  right  to  compensation  is  not  affected  by  fraudu- 
lent representations  made  to  the  principal  by  third  persons. 
Heaton  v.  Clarke,  122  Iowa,  716,  98  N.  W.  597.  Unless  they 
are  in  privity  with  the  broker.  Thwing  v.  Clifford,  136  Mass. 
482. 

Where  defendant  employed  plaintiff  to  sell  certain  standing 
timber,  and  dealt  as  though  he  was  the  owner,  he  could  not 
defeat  the  plaintiff's  right  to  commissions  on  a  sale  subse- 


408  AMERICAN  LAW  REAL  ESTATE   AGENCY. 

quently  made  to  a  purchaser  found  by  plaintiff,  by  showing 
that  at  the  time  plaintiff  was  employed  defendant  did  not  own 
the  land,  but  procured  full  title  thereto  before  he  sold  it  to 
such  purchaser.  McDonald  v.  Cabiness,  100  Tex.  615,  98  S. 
W.  943,  affirmed  102  S.  W.  721. 

Subsequent  dissatisfaction  of  the  principal  with  the  terms 
of  payment  to  which  she  had  agreed  and  on  which  the  broker 
was  authorized  to  sell  the  property,  or  with  the  terms  agreed 
on  with  the  purchaser  found  by  the  broker,  if  within  his  au- 
thority, does  not  justify  the  principal  in  refusing  to  complete 
the  transaction.  Fenn  v.  Ware,  100  Ga.  563,  28  S.  E.  238; 
Miller  v.  Earth,  71  N.  Y.  S.  989,  35  Misc.  372;  Hart  v.  Ehrhardt, 
177  111.  App.  145. 

That  the  principal  is  ignorant  of  the  efforts  of  his  broker  in 
procuring  a  customer,  does  not  affect  the  broker's  right  to  com- 
missions. Colonial  Trust  Co.  v.  Pacific  Packing  &  Nav.  Co.,  158 
Fed.  277,  85  C.  C.  A.  539;  Handley  v.  Shaffer,  59  S.  286,  177 
Ala.  636;  Jackson  v.  Brower,  167  P.  6,  22  N.  M.  615;  Hill  v. 
Huber,  202  S.  W.  785,  —  Tex.  Civ.  App.  — .  See  also  Sec.  540. 

The  failure  of  a  prospective  purchaser  of  coal  lands  to  rely 
upon  the  owner's  representation  and  the  broker  employed  to  find 
a  purchaser  that  a  railway  had  consented  or  agreed  to  construct 
a  branch  railroad  into  such  lands,  does  not  defeat  the  broker's 
right  to  his  agreed  commissions,  where,  relying  upon  such  repre- 
sentations, he  found  a  purchaser,  and  the  sale  fails  because  of 
their  inaccuracy.  Dotson  v.  Milliken,  209  U.  S.  237,  52  L.  Ed. 
768.  See  also  Sec.  165. 

A  broker  is  not  entitled  to  commissions  on  sales  made  by  the 
principal,  uninfluenced  by  the  broker.  Humphries  &  J.  v.  Smith, 
5  Ga.  App.  340,  63  S.  E.  248 ;  Brady  v.  M addox,  124  S.  W.  739, 
—  Tex.  Civ.  App.  — ;  Morris  v.  Clark,  80  S.  406,  —  Ala.  Sup. 
— ;  Harris  &  White  v.  Stone,  207  S.  W.  443,  —  Ark.  Sup.  — ; 
Dickinson  v.  Robinson,  82  S.  398,  —  La.  Sup.  — .  See  Sees. 
142,  169. 

Where  a  broker  has  procured  a  purchaser  for  land,  and  while 
his  agency  is  unrevoked,  and  he  is  still  negotiating  with  a  pur- 
chaser at  the  owner's  stipulated  price,  the  owner  sells  through  an- 
other broker,  the  original  broker  is,  nevertheless,  entitled  to  his 
commissions.  Hovey  v.  Aaron,  113  S.  W.  718,  133  Mo.  App.  573. 
Compare  Sees.  41,  141,  445. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  409 

Where  brokers  procured  a  purchaser  from  premises  listed 
with  them  for  sale,  who  was  ready,  able  and  willing  to  buy 
the  premises  at  the  terms  named  by  the  owners,  and  the  pur- 
chaser and  owners  came  to  an  agreement,  the  brokers  were  en- 
titled to  a  commission  though  the  premises  were  not  sold  be- 
cause the  owners,  before  the  contract  was  signed,  raised  the 
price,  which  the  purchaser  would  not  pay.  Sotsky  v.  Ginsberg, 
114  N.  Y.  S.  114,  120  App.  Div.  441.  See  also  Sec.  55. 

A  party  can  not  defeat  his  obligation  to  pay  real  estate  com- 
missions by  voluntarily  cancelling  the  contract  of  purchase 
and  sale  obtained  by  the  real  estate  agent.  Myers  v.  Buell, 
142  111.  App.  467. 

Where  defendants,  real  estate  brokers,  agreed  to  procure  a 
purchaser  for  plaintiff's  property,  and  in  fact  procured  a  per- 
son who  executed  a  contract,  valid  on  its  face,  with  plaintiff 
for  an  exchange  of  property,  defendants  were  entitled  to  their 
commissions,  irrespective  of  whether  the  plaintiffs  misrepre- 
sented their  property  to  the  purchaser  so  as  to  justify  him 
in  refusing  to  carry  out  the  exchange.  Lewis  v.  Mansfield  Grain 
&  Elevator  Co.  (Tex.  Civ.  App.  '09),  121  S.  W.  585;  Hutton  v. 
Stewart,  135  P.  681,  90  Kan.  602. 

The  fact  that  the  one  who  was  employed  to  procure  a  purchaser 
of  real  estate  violated  his  contract  of  employment  with  a  third 
person  engaged  in  the  banking  and  real  estate  business  did  not 
defeat  his  right  to  recover  his  commissions  from  the  owner  on 
procuring  a  purchaser.  Pomerici  v.  Rosenbloom,  120  N.  Y.  S. 
756;  Kice  v.  Dugan,  137  S.  W.  240,  143  Ky.  676. 

In  an  action  to  recover  commissions  for  a  sale  of  property  for 
which  plaintiffs  agreed  to  secure  a  purchaser,  the  plaintiffs'  pro- 
posed purchaser  would  not  purchase  upon  the  terms  agreed  upon 
between  plaintiffs  and  defendant,  though  defendant  thereafter 
sold  the  premises  by  a  different  broker  to  the  partner  of  plaintiffs' 
proposed  purchaser.  In  the  absence  of  bad  faith  by  defendant  in 
making  the  sale,  plaintiffs  could  not  recover  any  commissions. 
Nadler  v.  Menschel,  110  N.  Y.  Sup.  384. 

A  real  estate  broker  held  not  entitled  to  a  commission  merely 
because  he  conducts  negotiations  for  a  particular  property  which 
the  plaintiff  subsequently  acquires  from  another  broker  after  he 


410  AMERICAN   LAW   EEAL   ESTATE   AGENCY. 

has  discontinued  his  efforts.  J.  A.  Patterson  Co.  v.  United  Gas 
Imp.  Co.,  86  A.  852,  239  Pa.  277. 

A  broker  seeking  to  recover  commissions  under  a  contract  stip- 
ulating for  a  commission  for  urging  a  third  person  to  purchase 
property,  need  not  show  that  his  urging  was  an  inducement,  or 
the  procuring  cause  of  the  sale  to  the  third  person,  but  he  may 
recover  on  proof  that  he  saw  the  third  person  and  urged  him  to 
buy  the  property,  and  that  the  third  person  purchased  it.  Tuf- 
free  v.  Saint,  126  N.  W.  373,  147  Iowa,  361. 

Owner  who  sold  to  broker's  customer  held  not  entitled  to  de- 
feat broker's  suit  for  commission  on  the  ground  that  his  con- 
tract with  the  buyer  was  only  a  conditional  one  when  the  suit 
was  begun..  Burdett  v.  Parish,  172  S.  W.  620,  185  Mo.  App.  605. 

Broker  who  fails  to  find  a  purchaser  for  land  within  the  time 
limited  by  his  contract  with  the  owner  is  not  entitled  to  a  com- 
mission, though  a  sale  is  subsequently  made  to  the  purchaser  who 
negotiated  with  the  broker  within  such  time,  provided  the  owner 
acted  in  good  faith  and  did  not  interfere  with  the  agent's  efforts 
to  make  a  sale  within  the  specified  time.  Murray  v.  Miller,  166 
S.  W.  536,  112  Ark.  227,  Ann.  Cas.  1916  B,  974. 

The  plaintiff  was  to  procure  a  purchaser  for  land  owned  by 
the  defendant  for  an  agreed  compensation,  and  the  plaintiff  found 
a  purchaser  who  made  a  conditional  agreement  to  buy  the  land, 
but  by  a  condition  assumed  absolutely,  the  purchaser  agreed  with 
defendant  to  purchase  the  land  through  another  agent,  and,  while 
such  agreement  for  a  purchase  was  pending,  plaintiff,  in  his  ac- 
tion for  compensation,  levied  an  attachment  on  the  land,  because 
of  which  the  purchaser  refused  to  close  the  trade  until  the  attach- 
ment was  released.  Held,  that  having  defeated  the  sale  the  plain- 
tiff had  no  right  of  action.  Rogers  v.  McMillan,  132  S.  W.  853, 
62  Tex.  Civ.  App.  486. 

Where  realty  broker  is  the  instrument  through  which  sale  has 
been  effected,  no  artifice,  deceit  or  fraud  will  deprive  him  of  his 
commission.  Luzzadder  v.  McCall,  198  S.  W.  1144,  —  Mo. 
App.  — . 

In  an  action  by  a  broker  for  his  commissions  against  the  vendor 
of  property,  where  there  was  an  agreement  between  the  broker 
and  vendor  that,  unknown  to  the  purchaser,  a  certain  sum  out  of 
the  supposed  purchase  price  was  to  go  to  such  broker,  the  apparent 


COMMISSION  AND   COMPENSATION  OF  AGENTS.  411 

deception  of  the  purchaser  does  not  affect  the  vendor's  liability. 
titrassheim  v.  Reuttinger,  198  111.  App.  258. 

Under  contract  to  pay  a  commission  to  broker  effecting  a  sale 
or  procuring  a  purchaser,  broker  was  not  entitled  to  a  commis- 
sion if  owner  sold  the  property  without  his  aid  following  after 
his  failure  to  effect  a  sale,  though  sale  was  to  one  whom  broker 
had  introduced  as  prospective  purchaser.  Ford  v.  Shaffer,  79  S. 
172,  —  La.  Sup.  — . 

Evidence  held  to  show  that  the  broker  was  not  the  procuring 
cause  of  the  sale  of  defendant's  property  to  the  person  to  whom 
he,  and  many  other  parties,  had  mentioned  the  property,  and 
whom  the  owner  induced  to  buy  it,  without  knowledge  that  the 
broker  had  spoken  to  him  about  the  property.  Gammell  v.  Cox, 
219  S.  W.  745,  —  Ark.  Sup.  — . 

Brokers  are  entitled  to  their  commission  under  a  contract  au- 
thorizing them  to  sell  land  within  one  year,  where  they  procured 
an  offer  and  reported  it  to  the  owner,  who  accepted  it  before  the 
expiration  of  the  year,  though  a  formal  contract  of  sale  was  not 
signed  until  the  year  had  expired.  Chandler  v.  Gaines-Ferguson 
Realty  Co.,  224  S.  W.  484,  —  Ark.  Sup.  — . 

Plaintiff  who,  at  his  own  solicitation,  was  given  a  chance  to 
sell  land,  with  a  distinct  agreement  that  he  must  look  to  the 
purchaser  for  any  commission,  landowner's  sole  interest  being 
that  net  price  be  a  certain  amount,  plaintiff  being  informed  that 
he  was  not  a  broker,  and  could  not  be  entitled  to  any  commission, 
was  not  entitled  to  a  commission,  where  parties  to  whose  notice 
the  property  had  been  brought  refused  to  deal  with  him,  and 
dealt  directly  with  the  owner.  Hurley  v.  Randall,  111  A.  530,  — 
E.  I.  Sup.  — . 


CHAPTER  V. 

SECTION.  SECTION. 

455.  Deals.  459.    Failure  of  sale  by  defect  in  title. 

456.  Excess  in  price  as  compensation.  460.    Failure  of  purchaser  to  carry  out 

457.  Failure  of  broker  to  sell.  contract. 

458.  Failure  to  consummate  contract  460a.  Broker    employed    to    purchase 

of  sale.  entitled    to    commission    for 

458a.  Negotiations  not  constituting  a  services. 

contract  broker  not  entitled  to  461.    Failure  of  consideration, 

commission.  462.    Forfeitures. 

Sec.  455.    Deals. 

Where  an  owner  of  real  estate  asks  a  real  estate  broker  "to 
get  a  deal,"  it  is  not  necessary  for  the  real  estate  broker  to 
assent  in  words;  if  he  procures  a  purchaser  he  makes  a  con- 
tract by  performance  and  is  entitled  to  commissions.  Lamb 
v.  Prettyman,  33  Pa.  Super.  Ct.  190. 

Evidence  was  held  to  show  that  a  contract  by  which  plain- 
tiff was  employed  to  procure  contemplated  exchanges  of  real 
estate  was  a  severable  contract,  and  that  the  carrying  out  of 
one  of  the  deals  entitled  the  plaintiff  to  a  commission,  without 
regard  to  the  other  prospective  deals.  Goodspeed  v.  Miller, 
98  Minn.  457,  108  N.  W.  817.  See  also  Sec.  496.  Mechem  on 
Ag.  Sec.  634. 

Where  broker  merely  engaged  to  secure  defendant  a  deal  that 
suited  him,  after  introducing  defendant  to  one  with  whom  he 
afterwards  concluded  the  deal,  wrote  defendant  a  letter  in  which 
he  expressed  his  opinion  that  there  was  nothing  in  the  party  to 
whom  he  had  introduced  defendant,  there  is  no  abandonment  of 
the  employment,  it  appearing  that  the  defendant  had  previously 
signed  a  contract  for  an  exchange  of  lands.  Weidemeyer  v.  Wood- 
rum,  154  S.  W.  894,  168  Mo.  App.  716. 

Broker  employed  "to  find  a  deal" ;  held,  to  have  fully  performed 
the  service  for  which  he  was  employed  by  procuring  a  person 
ready,  willing  and  able  to  make  a  satisfactory  exchange  of  prop- 
412 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  413 

crties  with  his  principal.    Nooning  v.  Miller,  165  S.  W.  119,  178 
Mo.  App.  297;  Meyers  v.  Kilgan,  160  S.  W.  569,  177  Mo.  App. 

724. 

Sec.  456.    Excess  in  price  as  compensation. 

A  real  estate  agent  employed  to  sell  land  for  a  certain  net 
price  is  not  entitled,  in  the  absence  of  a  contract  therefor,  to 
any  excess  over  such  price  that  he  may  obtain  for  the  land,  there 
being  no  contract  to  that  effect.  Snow  v.  McFarlane,  51  111.  App. 
448;  Turnley  v.  Michael  (Tex.  Civ.  App.  '91),  15  S.  W.  912; 
Kellogg  v.  Keeler,  27  111.  App.  244.  Compare  Deming  Inv.  Co. 
v.  Meyer  (Okla.  Sup.  '07),  91  P.  846,  Sec.  290. 

In  an  action  for  the  violation  of  duties  due  to  plaintiff  as 
broker,  it  appeared  that  defendant  informed  plaintiff  that  he 
had  certain  lots  for  sale  at  $17,500;  the  lots  had  been  placed 
in  defendant's  hands  by  E.,  another  broker,  with  whom  they 
had  been  placed  by  the  owner,  and  the  price  asked  by  defend- 
ant was  that  fixed  by  the  owner;  plaintiff  refused  to  buy  at 
that  price  and  offered  $13;000;  defendant  reported  the  bid  to 
E.,  who  was  informed  by  the  owner  that  he  could  have  the 
lots  at  $12,000,  without  commissions;  E.  then  instructed  de- 
fendant to  offer  the  lots  to  plaintiff  at  $14,000,  which  offer 
plaintiff  accepted,  and  defendant  then  procured  a  contract, 
and  reported  that  he  had  bought  the  property  for  plaintiff. 
Held,  that  the  evidence  did  not  show  that  defendant  was  em- 
ployed by  plaintiff  so  as  to  make  him  liable  for  the  difference 
between  the  price  at  which  the  owner  was  willing  to  sell  and 
the  price  asked.  Lazarus  v.  Sands,  27  N.  Y.  S.  885,  33  N.  Y. 
S.  855,  7  Misc.  282,  12  Misc.  575.  See  also  Sec.  25. 

Under  a  contract  empowering  a  real  estate  broker  to  sell 
property  for  a  certain  sum,  and  providing  that  he  should  have 
as  commissions  all  that  he  could  get  for  the  property  above 
the  price  named,  he  was  entitled  to  commissions  only  in  the 
event  of  procuring  a  consummation  of  the  sale,  and  not  on 
procuring  the  execution  of  a  contract  of  sale  which  was  never 
performed.  Munroe  v.  Taylor,  191  Mass.  483,  78  N.  E.  106; 
Murphy  v.  W.  &  W.  Live  Stock  Co.,  189  P.  857,  —  Wyo.  Sup.  — . 
See  also  Sec.  503. 


414  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

The  owner  of  land  agreed  to  pay  a  broker  five  per  cent,  com- 
mission if  he  found  a  purchaser  who  would  pay  him  $3,000; 
thereafter  the  owner  went  away,  but  before  leaving  told  the 
broker  to  consult  C,  and  deal  with  him  in  the  owner's  place ;  sub- 
sequently C  authorized  a  sale  for  $3,000  net  to  the  owner,  agree- 
ing that  the  broker  might  have  anything  above  that;  the  owner 
was  informed  of  a  sale  made  for  $3,500,  the  contract  calling  for  a 
good  title,  but  refused  to  execute  a  proper  deed.  Held,  that  the 
broker  was  entitled  to  recover  $500.  Foster  v.  Taylor,  44  Wash. 
313,  27  Pac.  358;  Chesbrough  v.  Vizard  Inv.  Co.,  160  S.  W.  725, 
156  Ky.  149 ;  McKibben  v.  Wilson,  182  P.  638,  —  Kan.  Sup.  — . 

Where  a  broker  agreed  with  the  owner  of  land  to  sell  it, 
and  that  all  above  a  certain  price  should  be  divided  between 
them,  and  advised  her  to  sell  below  the  price  named  after  a 
certain  time,  on  the  ground  that  the  lands  were  not  worth 
more,  and  effected  a  sale  after  the  death  of  the  owner  for  her 
executor  at  a  price  which  left  nothing,  under  the  agreement 
with  the  decedent,  to  be  divided,  a  claim  against  the  executor 
for  commissions  could  not  be  allowed.  In  re  French's  Est.f 
101  N.  Y.  S.  734.  51  Misc.  457. 

Where  an  owner  promised  and  agreed  to  pay  a  broker  aa 
a  commission  for  procuring  a  tenant,  ' '  all  you  get  above  $2,000 
per  year,"  and  the  broker  rents  the  premises  for  five  years  at 
an  annual  rental  of  $2,200,  he  was  entitled  to  the  excess  over 
$2,000  each  year  during  the  life  of  the  lease,  and  not  merely 
for  one  year.  Goldstein  v.  D'Arcy,  201  Mass.  312,  87  N.  E. 
584.  See  also  Sec.  212.  Compare  Sec.  207. 

A  broker  employed  to  procure  a  purchaser  of  real  estate, 
to  receive  as  commissions  any  sum  in  excess  of  $45  per  acre, 
can  not  recover  commissions,  where  the  owner  sold  the  land 
at  $45  per  acre,  in  the  absence  of  a  showing  that  the  sale  was 
made  in  fraud  of  the  broker's  rights,  though  he  claimed  that 
he  could  have  sold  for  $50  per  acre.  Cook  v.  Whiting  (Iowa 
Sup.  '09),  122  N.  W.  835. 

A  broker  employed  to  procure  a  purchaser  willing  to  pay 
$16,000  net,  for  a  commission  of  whatever  was  obtained  in 
excess  of  that  sum,  who  procured  a  purchaser  willing  to  pay 
$16,500,  on  the  condition  that  the  owner  pay  to  a  third  per- 
son as  purchaser's  agent,  for  his  compensation  in  the  transac- 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  415 

tion,  two  and  one-half  per  cent,  thereof,  did  not  comply  with 
the  contract  of  employment  and  could  not  recover  commissions. 
Slayback  v.  Wetzel  (Mo.  App.  '09),  123  S.  W.  982. 

Broker  entitled  to  excess  as  commission  on  finding  a  purchaser 
ready,  able  and  willing  so  to  do.  Hale  v.  Taylor,  126  S.  W.  755, 
140  Mo.  App.  692 ;  Davis-Fisher  Co.  v.  Hall,  148  1ST.  W.  713,  182 
Mich.  574,  L.  E.  A.  1915  A,  1224. 

A  real  estate  broker's  obligation  was  fully  performed  when  he 
procured  from  a  prospective  purchaser  an  enforceable  contract  to 
purchase  at  the  agreed  price,  and  it  was  no  concern  of  the  owner, 
who  agreed  that  the  broker  should  receive  all  over  that  amount, 
that  the  excess  was  in  the  form  of  fruit  that  the  purchaser  agreed 
should  go  to  the  broker  rather  than  money.  Sill  v.  Ceschi.  140 
P.  949,  167  Cal.  698. 

Where  an  owner  of  land  agreed  with  a  broker  that  the  latter 
might  sell  for  a  given  sum  net,  such  agreement  authorized  the 
broker  to  retain  all  the  proceeds  above  that  sum  as  a  commission, 
but  does  not  entitle  him  to  any  commission  unless  an  actual  sale 
is  made.  Noyes  v.  Caldwell,  104  N.  E.  595,  216  Mass.  525. 

Where  a  broker  is  employed  to  sell  real  estate  at  a  stipulated 
net  price,  and  on  certain  terms,  with  an  understanding  that  he 
shall  have  all  in  excess  of  the  net  price  for  his  compensation,  he  is 
at  liberty  to  enter  into  a  contract  to  sell  the  premises  with  other 
property  for  a  gross  consideration  in  excess  of  the  owner's  net 
price,  provided  the  proposed  purchaser  is  willing  and  able  to  pur- 
chase at  the  price  and  on  the  stipulated  terms,  though  a  part  of 
the  consideration  in  excess  of  that  which  was  to  be  paid  to  the 
owner  consists  of  stock  in  a  corporation.  Smith  v.  Mellen,  133 
K  W.  566,  116  Minn.  198. 

A  broker  procuring  a  purchaser  for  property  subsequently  con- 
demned, for  a  sum  in  excess  of  that  he  was  authorized  to  sell  it 
for,  can  recover  his  agreed  commission.  Tyler  v.  Seller,  136  N. 
Y.  Sup.  394,  76  Misc.  Eep.  185. 

A  broker  employed  to  procure  a  purchaser  for  compensation  of 
any  sum  in  excess  of  price  fixed  by  the  principal;  held,  not  to 
forfeit  compensation  because  he  became  interested  with  the  pur- 
chaser in  purchasing  the  land.  Martineau  v.  Hanson,  155  P.  432, 
47  Utah,  549. 


416  AMERICAN   LAW   EEAL   ESTATE    AGENCY. 

Where  a  broker  is  given  the  sale  of  land  at  a  net  price  to  the 
owner,  it  is  necessary,  to  recover  substantial  damages,  that  the 
customer  furnished  was  able,  ready  and  willing  to  buy  at  a  cer- 
tain advanced  price,  although  vendor,  by  his  acts,  released  him 
from  any  obligation  to  produce  a  customer.  Shapiro  v.  Benenson, 
167  N.  Y.  Sup.  1004,  181  App.  Div.  19. 

Defendants'  general  agent  S,  being  authorized  by  them  to  sell 
for  $23,000  and  retain  as  compensation  any  amount  received  in 
excess  of  $23,000,  and  who,  having  employed  plaintiff  to  find  a 
customer,  S  and  plaintiff  to  divide  any  such  excess,  the  fact  that 
plaintiff  was  to  receive  a  commission  from  G,  obtained  as  a  cus- 
tomer after  refusing  a  price  of  $30,000,  and  in  not  affecting  de- 
fendants, did  not  deprive  him  of  right  to  recover  his  commission 
from  them.  Springstein  v.  Lewis,  259  F.  518. 

Sec.  457.    Failure  of  broker  to  sell. 

Where  a  broker  brought  a  prospective  purchaser  before  the 
owner  of  land,  and  the  prospective  purchaser,  upon  being  told 
the  price,  left  without  taking  any  action,  the  broker  was  not  en- 
titled to  a  commission,  since  he  had  not  furnished  a  purchaser 
ready,  able  and  willing  to  buy  on  the  seller's  terms.  Irines  v. 
Bogan,  41  Colo.  9,  91  P.  1108;  Oeorgeon  v.  John,  174  K  Y.  Sup. 
145. 

Broker  authorized  to  procure  a  purchaser  for  a  wife's  realty 
at  $7,000,  and  for  her  husband's  grocery  business  conducted 
therein  for  $2,000,  who  found  two  persons  who  agreed  to  pay 
$8,500  for  both,  offers  refused  by  the  husband,  after  which  broker 
remained  inactive  for  weeks,  when  wife  sold  her  realty  for  $7,000 
and  her  husband  sold  his  grocery  business  for  $2.000  to  the  one 
who  had  offered  $8,500  for  both  store  and  premises,  in  the  ab- 
sence of  bad  faith  broker  could  not  recover  commission  from  the 
wife.  In  re  Nielson,  127  N".  E.  514,  —  Mass.  Sup.  — . 

Sec.  458.    Failure  to  consummate  contract  of  sale. 

To  entitle  a  real  estate  broker  to  his  commission,  he  must 
produce  a  person  who  actually  purchases  the  property  by  com- 
plying with  the  terms  agreed  upon,  unless  his  failure  to  do 
so  is  caused  by  the  fault  of  the  vendor.  Richards  v.  Jack- 
son, 31  Md.  250;  Fox  v.  Regan,  240  111.  391,  88  K  E.  974; 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  417 

Briggs  v.  Eowe,  1  Abb.  Dec.  (N.  Y.)  189,  4  Keyes,  424;  Bur- 
nett v.  Eddling,  19  Tex.  Civ.  App.  711,  48  S.  W.  775;  Parker 
v.  Nat  Bdg.,  etc.  Assn.,  55  W.  Va.  134,  46  S.  E.  811;  Hugitt  v. 
Weekly,  64  W.  Va.  210,  61  S.  E.  360,  15  L.  R.  A.  (ET.  S.)  1262; 
Hamberger  v.  Thomas  (Tex.  Civ.  App.  '09),  118  S.  W.  770; 
Dotson  v.  MiHikin,  209  F.  S.  237;  Bankin  v.  Grist,  129  S.  W. 
1147,  61  Tex.  Civ.  App.  484;  Crum  v.  Slade  &  Bassett,  154  S. 
W.  351,  —  Tex.  Civ.  App.  — ;  Cligg  v.  Meyer,  134  S.  W.  386, 
-  Tex.  Civ.  App.  — ;  Young  v.  Whitaker,  150  P.  972,  46  Utah, 
474;  Hayden  v.  Ashley,  150  P.  1147,  86  Wash.  653;  Speer  v. 
Benedum  Trees  Oil  Co.,  86  A.  695,  239  Pa.  189;  De  Perow  v. 
Groomes,  42  App.  D.  C.  287;  Cunningham  v.  Friendly,  140  P. 
989,  70  Or.  222,  den.  re.  139  P.  928,  70  Or.  222 ;  Husak  v.  May- 
wald,  185  111.  App.  479;  Bleiswess  v.  McCurdy,  180  P.  403,  — 
Wash.  Sup.  — ;  Olan  v.  Ducharme,  106  A.  777,  —  Vt.  Sup.  — ; 
Oregon  Home  Builders  v.  Montgomery  Inv.  Co.,  184  P.  487,  — 
Or.  Sup.  — ;  Harris  v.  Warmack,  101  S.  E.  713,  —  Ga.  App.  — ; 
Laird  v.  Elliott,  219  S.  W.  499,  —  Tex.  Civ.  App.  — .  See  also 
Sec.  536. 

Where  the  owner  of  land  authorized  real  estate  agents  to 
sell  land  purchased  by  him,  and  informed  them  that  he  had 
no  deed  for  the  same,  but  held  it  under  a  contract,  and  the 
agents  made  a  contract  for  a  sale  of  the  land,  but  the  pur- 
chaser refused  to  complete,  because  the  vendor  had  only  a  con- 
tract of  purchase,  there  being  no  other  defect  in  the  title,  it 
was  held  that  the  agents  were  not  entitled  to  recover  the  agreed 
commissions  on  the  sale,  as  it  proved  abortive  without  any 
fault  on  the  part  of  their  principal.  Hoyt  v.  Shipherd,  70  111. 
309.  Compare  Sec.  33. 

Where  a  broker  was  employed  to  sell  a  whole  tract  of  land, 
or  a  part  thereof,  and  after  negotiations  the  broker  failed  to 
make  a  sale,  and  an  attempt  was  made  to  discharge  him,  but 
he  continued  his  negotiations,  subsequently  the  owner  sold  a 
portion  of  the  tract  to  a  person  with  whom  the  broker  had 
prior  negotiations ;  the  owner  was  held  liable  to  pay  the  broker 
a  proportionate  commission.  Diamond  v.  Wheeler,  80  N.  Y. 
S.  416,  80  App.  Div.  58;  Bogart  v.  McWilliams  (Tex.  Civ. 
App.  '95),  31  S.  W.  434. 


418  AMERICAN  LAW  REAL  ESTATE  AOENOY. 

A  broker's  contract  for  a  commission  on  a  sale  of  an  entire 
tract  of  timber  land;  held,  not  to  entitle  him  to  a  commission  on 
a  sale  of  a  portion  of  the  tract.  Wilson  v.  Rafter,  174  S.  W.  137, 
188  Mo.  App.  356. 

Broker  not  entitled  to  a  commission  for  sale  of  a  part  of  a 
tract  when  employed  to  sell  the  whole.  Martin  v.  Crumb,  142 
ST.  Y.  Sup.  1096,  158  App.  Div.  228,  rear,  and  app.  to  Ct.  App. 
den.,  143  N.  Y.  Sup.  1130,  158  App.  Div.  939,  judg.  rev.,  Ill 
N.  B.  62,  216  N.  Y.  500. 

A  broker  employed  to  procure  a  loan  on  real  estate  is  not 
entitled  to  compensation  merely  because  a  lender  was  found 
who  agreed  to  make  the  loan,  subject  to  the  conditions,  "title, 
etc.,  being  found  ultimately  satisfactory,"  but  who  declined 
to  make  the  loan  after  an  examination  of  defendant's  title  to 
the  real  estate.  Chambers  v.  Ackley,  91  N.  Y.  S.  78;  Gatling 
v.  Central  Spar  Verein,  73  N.  Y.  S.  496,  67  App.  D.  50. 

An  owner  employed  a  broker  to  procure  a  purchaser  for 
described  real  estate  for  a  specified  sum  at  a  specified  com- 
mission; the  broker  procured  a  third  person  to  make  an  offer, 
which  the  owner  accepted,  and  the  two  entered  into  a  contract 
for  an  exchange  of  properties;  the  broker  testified  that  the 
owner  stated  that  if  he  could  get  a  third  person  to  agree  to 
give  a  specified  number  of  lots  and  a  mortgage  back  of  a 
specified  sum  the  owner  would  pay  a  specified  sum  for  com- 
missions: the  agreement  for  an  exchange  was  not  carried  out 
because  of  a  defect  in  the  title  of  the  third  person,  which  the 
broker  attempted  to  cure.  Held,  that  the  broker  was  not  entitled 
to  commissions,  none  being  earned  unless  a  transfer  was  made. 
Keating  v.  Healey,  147  Mich.  279,  110  N.  W.  943,  13  D.  L.  N. 
1035. 

Plaintiff,  employed  to  sell  real  estate,  procured  a  purchaser 
who  executed  a  contract  to  purchase,  and  plaintiff  and  the  owner 
at  the  same  time  entered  into  a  written  agreement,  which  pro- 
vided that  plaintiff  would  accept  $500  as  a  full  commission,  which 
amount  should  be  paid  from  the  first  $500  received  by  the  owner 
after  the  first  $5,000  had  been  paid.  The  contract  was  never  car- 
ried out  because  the  owner  could  not  give  a  good  title.  Held, 
that  the  agreement  established  a  time  before  which  the  plaintiff 
was  not  entitled  to  compensation,  and  not  a  time  beyond  which 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  419 

he  was  not  required  to  wait  for  it,  so  that  he  could  not  recover. 
Such  agreement  superceded  the  ordinary  rule  that  a  broker  earns 
his  commission  when  he  has  procured  the  execution  of  a  valid 
agreement  for  sale.  Clark  v.  Horsy  (Mass.  Sup.),  105  N.  E. 
222,  217  Mass.  485.  Compare  Sees.  460,  501,  1118.  See  also 
Sec.  503. 

An  owner  employed  a  broker  to  procure  a  purchaser  of  his 
land;  the  broker  procured  a  purchaser  who  contracted  with 
the  owner  for  the  purchase;  the  purchaser  was  unable  to  pay 
the  cash  necessary  to  consummate  the  sale,  and  he  depended 
on  a  third  person  with  whom  he  had  contracted  to  buy  the 
property,  and  who  was  to  furnish  the  cash  to  make  the  first 
payment;  the  sale  was  not  made,  and  the  owner  cancelled  the 
contract.  Held,  that  it  was  not  necessary  for  the  broker,  in 
order  to  recover  his  commissions,  to  prove  that  the  purchaser 
was  able,  independently  of  the  third  person,  to  make  the  cash 
payment,  and  if  the  purchaser  could  have  procured  the  money 
from  the  third  person,  and  if  the  failure  to  complete  the  sale 
resulted  from  the  fault  of  the  owner,  the  commission  was 
earned.  Clark  v.  Wilson,  41  Tex.  Civ.  App.  450,  91  S.  W.  627. 
Compare  Fox  v.  Demargo  Land  Co.,  37  Colo.  203,  86  P.  344; 
Harmon  v.  Enright,  107  Mo.  App.  560,  81  S.  W.  1180;  Butler 
v.  Baker,  17  R.  I.  582,  23  A.  1019. 

A  real  estate  agent  executed,  in  duplicate,  a  contract  of  sale 
in  excess  of  his  authority  and  delivered  one  copy  to  the  pur- 
chaser, and  sent  one  to  the  principal  with  a  request  that  the 
latter  have  his  wife  sign  it;  the  purchaser  had  no  knowledge 
that  there  was  another  copy  of  the  contract,  sending  at  differ- 
ent times  to  the  agent  various  propositions  for  a  modification 
of  the  contract;  the  principal  knew  that  the  purchaser  and 
the  agent  were  in  communication,  and  the  former  was  charge- 
able with  knowledge  that  the  terms  of  the  contract  exceeded 
the  agent's  authority.  Held,  that  the  principal's  failure  to 
communicate  with  the  purchaser  was  not  a  ratification.  Strong 
v.  Ross,  33  Ind.  App.  586,  71  N.  E.  918.  See  also  Sec.  618. 


420  AMERICAN   LAW  SEAL   ESTATE   AGENCY. 

Broker  who  merely  shows  negotiations  never  ripening  into  a 
purchase,  or  an  agreement  to  purchase,  is  not  entitled  to  commis- 
sions. Stevenson  v.  Bannan,  84  A.  447,  235  Pa.  512. 

Plaintiff,  a  real  estate  broker,  was  not  entitled  to  a  commission 
in  procuring  a  sale  of  real  estate  to  defendant,  where  plaintiff 
procured  from  the  owner  an  offer  to  sell  for  $10,000,  and  he  was 
authorized  by  defendant  to  offer  $9,000,  and  thereafter  a  sale  was 
consummated  for  $9,500,  in  a  transaction  with  another  broker  in 
which  plaintiff  took  no  part.  OeJim  v.  Stark,  187  111.  App.  185. 

Broker  not  entitled  to  commission  where  another  broker  pre- 
ceded him,  and  he  did  not  have  an  exclusive  agency,  McFarland 
v.  Howell,  143  N.  W.  860,  162  Iowa,  110;  GrosTcin  v.  Moore,  94 
A.  1057,  249  Pa.  242. 

Where  a  broker  employed  by  executors  to  sell  land  brought  a 
purchaser  able  and  willing  to  take  the  property,  but  who  refused 
to  complete  the  contract  on  learning  that  there  was  a  vendor's 
lien  against  the  property,  the  broker,  in  the  absence  of  fraud  or 
misrepresentation  as  to  the  title  by  the  executors,  is  not  entitled 
to  recover  compensation.  Roberts  v.  Holland,  134  S.  W.  810,  — 
Tex.  Civ.  App.  — . 

Under  contract  for  payment  of  broker's  commissions  when  pay- 
ments were  made  by  purchaser,  which  were  never  made  to  vendor ; 
held,  not  liable  because  of  extensions  of  time  to  purchaser,  or  be- 
cause broker  had  no  notice  of  such  extensions.  Prince  v.  Selby 
Smelting  &  Lead  Co.,  170  P.  1075,  —  Cal.  App.  — . 

Plaintiff  realty  brokers,  who  had  made  with  the  owners  of  land 
a  valid  contract  to  sell  it  for  a  commission,  can  not  recover  in 
the  total  absence  of  testimony  to  show  that  they  found  or  pro- 
duced a  purchaser  at  any  price.    Swing  v.  Bond,  215  S.  W.  934, 
-  Ky.  Ct.  App.  — . 

When  commissions  are  based  on  the  amount  "received"  by  the 
owner,  a  failure  to  sell  the  land,  without  fault  of  the  owner,  pre- 
vents recovery  of  any  commissions.  Lee  v.  Greenwood  Agency 
Co.,  86  S.  449,  —  Miss.  Sup.  — . 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  421 

Sec.  458a.    Negotiations  not  constituting  a  contract,  broker 
not  entitled  to  commission. 

Broker  employed  to  procure  another  to  undertake  the  sale  of 
a  tract  of  land;  held,  not  entitled  to  commissions,  because  the 
negotiations  between  the  principal  and  said  other  party  did  not 
constitute  a  contract.  Jameson  v.  U.  S.  Farm  Land  Co.,  206 
F.  889,  124  C.  C.  A.  549,  re.  den.,  210  F.  885,  127  C.  C.  A.  495. 

Brokers  authorized  to  sell  at  a  certain  price  and  promised  a 
certain  amount  as  compensation  if  they  procured  a  purchaser, 
are  not  entitled  to  a  commission,  though  one  with  whom  they  had 
negotiations  ending  in  failure,  after  abandoning  the  idea  of  buy- 
ing on  any  proposition  made  through  them,  was,  by  a  friend  and 
the  owner,  persuaded  to  enter  into  negotiations  with  the  owner, 
which  resulted  in  his  buying  at  a  reduced  price  agreed  on  by  them. 
Swain  v.  Pitts,  82  S.  305,  —  Miss.  Sup.  — . 

Sec.  459.    Failure  of  sale  by  defect  in  title. 

A  contract  of  employment  may  be  so  drawn  as  to  deprive 
the  broker  of  the  right  to  a  commission,  if  the  transaction 
should  fall  through  because  of  a  defect  in  the  principal's  title. 
Louisville,  etc.  R.  Co.  v.  Shepard,  126  Ala.  416,  28  S.  202 ;  Clark 
v.  Hovey,  105  1ST.  E.  222,  217  Mass.  485;  Chas.  Somers  Co.  v. 
Fix,  134  P.  932,  75  Wash.  233;  Slade  &  Bassett  v.  Crum,  193 
S.  W.  723,  —  Tex.  Civ.  App.  — ;  Genatt  v.  Robinson,  165  N.  Y. 
Sup.  464. 

Sec.  460.    Failure  of  purchaser  to  cany  out  the  contract. 

/  If  the  principal  and  the  customer  found  by  the  broker  en- 
ter into  a  valid  contract,  and  the  purchaser  fails  to  make  the 
deferred  payments  and  surrenders  possession  to  the  vendor, 
the  broker  is  not  deprived  of  his  right  to  a  commission  for 
making  the  sale.  Shainwald  v.  Cady,  92  Cal.  83,  28  P.  101; 
Halleck  v.  Hinckley,  19  Colo.  38,  34  P.  479 ;  Lester  v.  Norton, 
43  Conn.  219;  Moss  v.  Wren  (Tex.  Sup.  '08),  118  S.  W.  149; 
Friestedt  v.  Dietrich,  84  111.  App.  604;  Jenkins  v.  Hollings- 
worth,  83  111.  App.  139;  Greene  v.  Hollingshead,  40  111.  App. 
195 ;  McConaughy  v.  Mahannah,  28  111.  App.  169 ;  Love  v. 
Miller,  53  Ind.  294;  Micks  v.  Stevenson,  22  Ind.  App.  475,  51 


422  AMERICAN  LAW  EEAL   ESTATE   AGENCY. 

N.  E.  492;  Pearson  v.  Mason,  120  Mass.  53;  Love  v.  Owens, 
31  Mo.  App.  501;  Lanney  v.  Healey,  56  Neb.  313,  76  N.  W. 
558;  Sedbury  v.  Fidelity,  etc.,  Ins.  Co.,  205  Pa.  St.  234,  54  A. 
898;  Hippie  v.  Laird,  189  Pa.  St.  472,  42  A.  46;  Bach  v.  #me- 
ric/i,  35  N.  Y.  Super.  Ct.  548;  Heinrich  v.  .Kern,  4  Daly  (N. 
Y.),  74;  T/wzw  v.  Philbreck,  74  N.  Y.  S.  856,  36  Misc.  829; 
Rosenberg  v.  Smith,  55  N.  Y.  S.  528,  25  Misc.  774;  Davis  v. 
Dawson,  194  S.  W.  15,  —  Ark.  Sup.  — .  See  also  Sec.  449. 
Compare  Sees.  458,  537.  V 

Where  owner  listed  real  estate  with  a  broker  for  sale,  and  he 
failed  to  procure  a  purchaser  upon  owner's  terms,  but  did  pro- 
cure one  who  entered  into  a  contract  directly  with  the  owner  on 
different  terms,  including  lot  conveyed  to  owner  as  part  of  con- 
sideration which  was  not  completed  because  purchaser  had  no 
title  to  and  could  not  obtain  title  to  lot,  the  purchaser  was  not 
"ready,  able  and  willing"  to  buy  on  terms  agreed  upon  by  him- 
self and  owner,  the  broker  did  not  earn  any  commission  upon  al- 
leged sale.  Harris  v.  Warmack,  101  S.  E.  713,  —  Ga.  App.  — ; 
Reder  v.  Epps,  166  S.  W.  747,  112  Ark.  566. 

Sec.  460a.    Broker  employed  to  purchase  entitled  to  commis- 
sion for  services. 

In  an  action  by  a  broker  for  commissions  for  purchasing  real 
estate,  where  defendant  authorized  to  pay  $27  an  acre,  and  plain- 
tiff obtained  a  price  of  $28,  which  defendant  agreed  to  pay,  and 
availed  himself  of  plaintiff's  services  in  closing  the  deal  at  that 
price,  defendant  was  liable  for  the  value  of  the  services  rendered. 
Comett  v.  Wooldridge,  133  S.  W.  345,  152  Mo.  App.  446. 

Sec.  461.    Failure  of  consideration. 

Partial  failure  of  consideration  is  no  defense  to  an  action 
on  a  note  executed  and  delivered  by  the  vendee  to  the  broker 
for  a  commission  for  making  a  sale  or  exchange  of  real  estate. 
Wade  v.  Bishop,  5  Ohio  Superior  &  C.  PI.  Dec.  625. 

Defendant  executed  two  notes  for  $385  each  in  payment  of 
a  commission  for  selling  land,  and  payable  only  in  the  event 
that  the  vendee  of  the  land  remained  on  it  for  one  year  and 
made  improvements  equal  in  value  to  the  notes;  the  vendees 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  423 

plowed  one  hundred  acres,  which  increased  its  value  $2.50  per 
acre,  erected  buildings,  constructed  drainage  worth  $75,  and 
a  levee  worth  $64,  but  with  the  consent  of  defendant,  to  whom 
they  executed  a  reconveyance,  abandoned  the  premises  before 
the  expiration  of  a  year.  Held,  that  a  finding  that  there  was 
no  failure  of  consideration  for  the  note  was  proper.  Easton 
Packing  Co.  v.  Kennedy,  131  Cal.  23,  63  P.  130;  Webster  v. 
Holmes,  174  Mass.  410,  54  N.  E.  872. 

Where  landowners  agreed  to  pay  a  commission,  and  to  give 
the  broker  an  exclusive  agency  to  sell  their  property,  in  consid- 
eration of  his  opening  and  maintaining  a  city  office,  the  broker 
can  not  recover  on  the  contract  where  he  maintained  the  city 
office  for  only  a  short  time.  Whitcomb  v.  Sayer,  144  P.  922,  82 
Wash.  572. 

Where  the  landowners  agreed  to  convey  to  a  broker  one-fourth 
of  a  tract,  in  consideration  of  the  broker's  sale  of  the  remainder, 
is  not  entitled  to  retain  the  portion  conveyed  to  him.  Id. 

Sec.  462.    Forfeitures. 

^The  plaintiff,  a  real  estate  broker,  having  in  his  hands  cer- 
tain property  of  the  defendant  for  sale  or  exchange,  arranged 
for  an  exchange  with  C.,  and  a  contract  was  executed  by  C. 
and  the  defendant,  by  which  each  was  to  take  immediate  pos- 
session of  the  other's  property,  and  on  or  before  a  day  fixed 
was  to  convey  his  property  to  the  other  by  warranty  deed; 
and  if  either  should  fail  to  perform,  he  was  to  pay  the  other 
$500  as  liquidated  damages;  C.  failed  to  perform,  without 
fault  on  the  part  of  the  defendant.  Held,  that  the  plaintiff 
was  entitled  to  his  commissions;  the  defendant  having  agreed 
to  accept  $500  in  lieu  of  performance,  would  not  be  allowed 
to  deny  as  against  the  plaintiff  that  that  payment  was  equiva- 
lent to  performance.  Leete  v.  Norton,  43  Conn.  219 ;  criti- 
cized, Rieger  v.  Bigger,  29  Mo.  App.  421 ;  Parker  v.  Estabrook, 
68  N.  H.  349,  44  A.  484.  Contra,  Kimberly  v.  Henderson,  29 
Md.  512;  Maloney  v.  Aschaffenburg,  78  S.  761,  —  La.  Sup.  — ; 
Fuller  v.  Preston,  191  P.  493,  —  Kan.  Sup.  — . 

H.,  a  real  estate  broker,  having  heard  that  K.  desired  to  sell 
certain  property,  went  to  his  office  and  informed  him  that  in 
case  he  succeeded  in  negotiating  a  sale  he  should  expect  the 


424  AMERICAN  LAW  EEAL  ESTATE   AGENCY. 

usual  commissions;  afterward  H.  brought  K.  and  J.  together 
and  certain  papers  were  executed  whereby  they  contracted  for 
a  sale  of  the  property,  with  a  stipulation  that -if  either  party 
should  fail  to  comply  with  the  contract,  a  forfeiture  of  $1,000 
should  be  paid  by  the  party  in  default;  J.  failed  to  comply 
with  the  contract  and  gave  his  note  for  the  forfeit  money. 
Held,  that  H.  was  not  entitled  to  a  commission.  Kimberly  v. 
Henderson,  29  Md.  512.  Contra,  Leete  v.  Horton,  43  Conn. 
219 ;  Parker  v.  Estabrook,  68  N.  H.  349,  44  A.  484. 

A  broker  is  not  injured  by  the  cancellation,  without  his  con- 
sent, of  a  contract  of  purchase,  and  derived  from  it  no  cause 
of  action  against  the  vendor,  where  the  broker  had  agreed  with 
the  vendor  that  he  (the  broker)  should  not  be  entitled  to  a 
commission  until  the  purchaser  fully  completed  the  transac- 
tion; the  agreed  payment  was  made  and  a  contract  of  sale 
executed,  but  the  purchaser  defaulted  in  making  the  first  de- 
ferred payment,  as  a  result  of  which  the  vendor  became  en- 
titled, under  the  contract  of  purchase,  to  declare  a  forfeiture. 
Seymour  v.  St.  Luke's  Hospital,  50  N.  Y.  S.  989,  28  A.  D. 
119. 

Where  a  purchaser  agrees  absolutely  to  buy  the  property,  the 
broker  can  not  be  deprived  of  the  commission  because  the  price 
is  payable  in  installments  where  the  vendor  has  the  right  to 
declare  a  forfeiture  on  default  of  payment  of  any  installment, 
exercises  the  same  and  retains  the  payments  made.  Stewart 
v.  Fowler,  53  Kan.  537,  36  P.  1002;  Willes  v.  Smith,  77  Wis. 
81,  45  N.  W.  666 ;  Betz  v.  Williams,  etc.,  Land  Co.,  46  Kan.  45, 
26  P.  456. 

A  broker  may,  by  agreement,  forfeit  his  right  to  a  commis- 
sion in  case  a  purchaser  defaults  in  carrying  out  his  contract. 
Seymour  v.  St.  Luke's  Hospital,  50  N.  Y.  S.  989,  28  App.  Div. 
119;  Forsyth  v.  Phelps,  128  P.  778,  2  Cal.  App.  133; 
Where  a  customer  obtained  by  a  broker  refuses  to  carry 
out  the  contract  of  sale  entered  into  with  the  vendor,  the  broker 
does  not  forfeit  his  right  to  a  commission  by  the  fact  that,  on 
such  refusal,  he  procures  another  customer  and  states  to  his  prin- 
cipal that  he  expects  no  commission  on  the  previous  sale.  Beach 
v.  Emerich,  35  N.  Y.  Super.  Ct.  548. 


COMMISSION  AND  COMPENSATION  OF  AGENTS. 

Where  a  contract  for  the  purchase  of  land  accorded  to  the 
purchaser  the  right  to  "back  out,"  on  paying  a  forfeiture, 
the  vendor  can  not  recover  damages  from  the  agents  on  ac- 
count of  their  having,  by  false  representations,  induced  the 
purchasers  to  forfeit  the  contract.  Hetzler  v.  Morrell,  82  Iowa, 
562,  48  N.  W.  938. 

If  an  agent  or  broker  employed  to  transact  a  particular 
business  is  guilty  of  bad  faith  to  his  principal,  he  thereby 
forfeits  his  right  to  commissions.  Bunn  v.  Kerch,  214  111. 
259,  73  N.  E.  419.  The  right  of  one  employing  a  broker  to 
procure  a  purchaser  for  his  land  to  recover  from  the  broker 
the  forfeit  money  paid  by  the  intending  purchaser  failing  to 
complete  the  purchase  is  not  affected  by  a  custom  that  forfeit 
money  belongs  to  the  broker,  the  owner  not  contracting  with 
reference  thereto.  M.  L.  Chambers  &  Co.  v.  Herring  (Tex. 
Civ.  App.  '05),  88  S.  W.  371. 

An  agent  employed  by  A.  and  B.  to  purchase  land,  made  a 
purchase  and  took  a  conveyance  to  himself,  and  afterwards 
obtained  from  A.  his  interest  in  the  land.  Held,  that  B.  did  not, 
by  neglecting  to  pay  his  share  of  the  purchase  money  at  the 
stipulated  time,  forfeit  his  right  to  a  conveyance  from  the  agent. 
Hutchinson  v.  Hutchinson,  4  Desau.  (S.  C.)  77.  Compare  First 
Panic  v.  Bissell,  2  McCrary  (U.  S.),  73.  Compare  Sec.  368. 

That  contract  of  sale  is  cancelled  by  consent  of  parties;  held, 
not  to  affect  the  right  of  broker  employed  by  vendor  to  compensa- 
tion. Reasoner  v.  Yates,  134  N.  W.  651,  90  Neb.  757. 

Under  Code  Pub.  Civ.  Laws,  Art.  2,  Sec.  17,  a  broker  who 
negotiated  a  contract  of  sale,  which  was  signed  by  both  vendor 
and  purchaser,  is  entitled  to  his  commission,  though  the  vendor 
dismisses  his  suit  to  compel  specific  performance  by  the  purchaser 
on  payment  of  a  consideration  by  the  purchaser.  North  Ave, 
Cassino  Co.  of  Balti.  City  v.  Ferguson,  100  A.  628,  130  Md.  376. 

Under  contract  to  sell  vendor's  land,  "one-half  down,  and  the 
balance  in  five  equal  annual  payments,"  a  broker  is  not  entitled 
to  commission  upon  vendor's  refusal  to  sign  and  seal  contract 
under  which  purchaser  could  refuse  to  complete  the  purchase  by 
forfeiture  of  $100  for  non-compliance,  such  being  an  option  con- 
tract and  incapable  of  specific  performance.  Cali.  Land  &  Secur- 
ity Co.  v.  Ritchie,  180  P.  625,  —  Cal.  App.  — . 


426  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

Where  a  real  estate  broker  procured  a  purchaser,  secured  by 
him  to  enter  into  a  contract  with  the  principal  for  the  sale  of 
certain  land,  that  the  contract  provided  for  a  forfeiture,  as  liqui- 
dated damages,  in  case  of  non-performance  on  the  purchaser's 
part,  deprived  the  broker  of  his  right  to  commission  upon  the 
purchaser's  refusal  to  consummate  the  decree,  without  the  fault 
of  either  the  broker  or  his  principal,  although  the  principal  was 
at  liberty  to  waive  his  right  to  specific  performance  of  the  con- 
tract and  accept  the  forfeiture  as  compensation  for  its  breach. 
La  Prelle  v.  Brown,  220  S.  W.  151,  —  Tex.  Civ.  App.  — . 

Where  landowner  obligated  himself  to  pay  an  ordinary  com- 
mission to  a  real  estate  broker  to  procure  a  purchaser  of  his 
premises,  and  the  broker  procured  a  purchaser,  the  mere  fact 
that  the  owner  thereafter,  believing  that  the  price  of  the  property 
was  liable  to  advance,  secured  a  release  from  his  contract  of  sale 
by  giving  the  purchaser  a  substantial  amount  of  money,  was  no 
ground  for  a  claim  on  the  part  of  such  owner  that  the  broker's 
demand  for  his  agreed  compensation  was  inequitable  and  extor- 
tionate. Gardner  v.  Buechler,  111  A.  589,  —  Conn.  Sup.  — .  ^JL 

Under  a  contract  obligating  defendants  to  procure  within  three 
days  a  three-year  lease,  for  a  specified  rental,  with  the  option  of 
two  additional  years,  or  to  return  to  plaintiffs  the  sum  of  $250 
paid  by  them,  plaintiffs  could  recover  the  $250,  where  the  lease- 
hold instrument  presented  to  plaintiffs  was  for  three  years  only, 
with  no  provision  for  the  additional  two  years,  notwithstanding 
evidence  that  the  lessors  were  willing  to  give  the  two  years'  exten- 
sion, but  not  to  embody  such  provision  in  the  written  lease.  Ver- 
non  v.  Antill,  194  P.  806,  —  Wash.  Sup.  — . 


CHAPTER  VT. 


SECTION. 

463.  Financial  conditions. 

464.  Financial  responsibility  of  pur- 

chaser. 

465.  Finding  a  purchaser. 

466.  Gratuities. 

467.  Goods  exchanged  for  land. 

468.  Broker  entitled  to  commissions 

in  stock  of  insurance  company. 

469.  Broker  entitled  to  commissions 

through  sale  enjoined. 

470.  Broker  not  entitled  to  full  com- 

missions till  price  paid. 

471.  Broker  not  informing  principal  of 

customer  defeats  commissions. 

472.  Knowledge  of  broker  that  prin- 

cipal owns  but  part  of  property 
does  not  defeat  commissions. 

473.  Litigation  by  third  persons  does 

not  defeat  commissions. 

474.  Methods  of  earning  commissions 

by  broker. 

474a.  Broker  employed  to  sell  real 
estate  not  required  to  prepare 
contract  of  purchase. 

475.  Broker  as  middleman  may  re- 

cover commissions  from  each. 


SECTION. 

476.  Sale   of   mine,   not  within   de- 

scription, defeats  commissions. 

476a.  Broker  not  performing  contract 
who  produces  contract  to  buy 
asking  for  abstract  additional. 

477.  Modification,  not  assented  to  by 

broker,  does  not  defeat. 

477a.  When  told  of  prospective  pur- 
chaser by  broker  owner  may 
then  raise  the  price. 

478.  Modification  in  broker's  presence 

did  not  affect. 

479.  Modification  by  performing  other 

services  modifies  right  to  com- 
missions. 

479a.  Owner  must  satisfy  broker's 
right  to  commission  in  one  of 
two  methods  left  to  exercise. 

480.  Broker  agreeing  to  take  stock, 

can  not  recover  in  money. 

481.  Net  price  to  owner,  broker  does 

not  take  excess. 

482.  Net  price  to  owner,  broker  sel- 

ling thereat  not  entitled  to  any 
commissions. 


Sec.  463.    Financial  conditions. 

The  fact  that  the  principal  cures  the  defect  in  his  title, 
does  not  deprive  the  broker  of  his  right  to  a  commission,  where 
the  principal  gave  no  notice  that  the  defect  was  cured  until  six 

427 


428  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

month's  after  the  customer  was  procured,  at  which  time  the 
customer  refused  to  make  the  loan  because  of  changed  finan- 
cial conditions.  Clark  v.  Henry  G.  Thompson,  etc.,  Co.,  75  Conn. 
161,  52  A.  720. 

Sec.  464.    Financial  responsibility  of  purchaser. 

Where  the  proposed  purchaser  was,  at  the  time  of  the  sign- 
ing of  the  contract  of  sale,  ready  to  make  the  payment  then 
due,  the  broker  is  not  required  to  show  that  the  purchaser 
had  sufficient  funds  on  hand  at  that  time  to  make  the  final 
payment.  Levy  v.  Ruff,  23  N.  Y.  S.  1002,  2  Misc.  180 ;  McDer- 
mott  v.  Mahoney  (Iowa  Sup.)  106  N.  W.  925,  affirmed  on 
rehearing,  115  N.  W.  32. 

The  fact  that  a  purchaser  is  insolvent  does  not  defeat  the 
broker's  right  to  a  commission,  where  a  cash  payment  is  not 
required,  and  the  contract  of  sale  contemplates  that  the  ven- 
dor is  to  be  secured  by  a  bond  and  deed  of  trust,  which  the, 
purchaser  is  prepared  to  deliver.  Ross  v.  Fickling,  11  App. 
Gas.  (D.  C.)  442. 

Where  the  proposed  purchaser  admits  that  he  had  not  the 
ability  to  pay  the  price  fixed,  his  testimony  that  he  was  acting 
in  behalf  of  a  syndicate,  and  that  he  would  have  been  pre- 
pared when  the  time  for  payment  came,  to  find  the  money 
required,  does  not  show  his  ability  to  buy.  Harmon  v.  En- 
right,  107  Mo.  App.  560,  81  S.  W.  1180;  Butler  v.  Baker,  17 
R.  I.  582,  23  A.  1019 ;  Fox  v.  .Demargo  Land  Co.,  37  Colo. 
203,  86  P.  344;  Madden  v.  Brown,  169  111.  App.  456;  8.  V. 
Thompson  Co.  v.  Goldman,  51  Pa.  Super.  Ct.  632 ;  Hicks  v.  Nor- 
ton, 155  S.  W.  669,  —  Tex.  Civ.  App.  — ;  Fox  v.  Cohen,  34  App. 
D.  C.  389.  Compare  Clark  v.  Wilson,  41  Tex.  Civ.  App.  450,  91 
S.  W.  627.  See  also  Sec.  558. 

Where  a  broker,  under  a  general  contract  of  employment 
to  sell  real  estate,  obtained  a  purchaser  satisfactory  to  his 
principal,  who  made  an  enforceable  contract  of  sale,  without 
being  induced  to  do  so  by  any  representations  of  the  broker 
as  to  the  purchaser's  responsibility,  and  without  any  bad  faith 
on  the  broker's  part,  the  latter  was  entitled  to  commissions, 
though,  without  the  principal's  fault,  the  vendee  failed  to 
perform  the  contract,  solely  because  of  the  lack  of  sufficient 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  429 

financial  responsibility  at  the  time  the  contract  was  executed. 
Alt  v.  Dosher,  92  N.  Y.  S.  439,  102  App.  Div.  344,  affirmed 
186  N.  Y.  566,  79  N.  E.  1100;  Fox  v.  Ryan,  240  111.  391,  88  N. 
E.  974;  Glade  v.  Esatern  III  Min.  Co.,  129  Mo.  App.  443, 
107  S.  W.  1002;  Brand  v.  Nagle,  107  N.  Y.  S.  156,  122  App. 
Div.  490;  Lombard  v.  Sills,  157  S.  W.  93,  170  Mo.  App.  555; 
Button  v.  Stewart,  135  P.  681,  90  Kan.  602 ;  Gransbury  v.  Sater- 
bok,  133  N.  W.  851,  116  Minn.  339;  Seidel  v.  Walker,  173  S.  W. 
1170,  —  Tex.  Civ.  App.  — ;  Root  v.  Grerdwohl,  128  P.  418,  20 
Cal.  App.  139;  Ga.  Iron  &  Coal  Co.  v.  Rogers,  Brown  &  Co.,  77 
S.  E.  213,  12  Ga.  App.  429;  Brink  v.  Goodelle,  138  N.  Y.  Sup. 
1035;  Hopkins  v.  Settles,  149  P.  890,  46  Okl.  801;  Harnwell  v. 
J.  D.  Arnold  &  Co.,  193  S.  W.  506,  —  Ark  Sup.  — ;  Union  v. 
Johnson,  94  S.  E.  945,  —  W.  Va.  Sup.  — .  Compare  Dotson  v. 
Millikin,  27  App.  Cas.  (D.  C.),  500.  See  also  Sec.  192. 

The  broker  must  show  that  the  purchaser  is  able  to  make 
the  exchange,  and  this  ability  is  not  proved  by  the  mere  pro- 
duction of  deeds  on  his  part,  without  some  showing  that  he 
also  had  title  to  the  properties  he  was  willing  to  deed.  His 
ability  does  not  depend  upon  general  financial  standing,  but 
upon  his  being  the  owner  of  the  land  it  was  proposed  to  ex- 
change. Herscher  v.  Wells,  103  111.  App.  418. 

Where  a  principal  accepts  a  purchaser  found  by  his  broker, 
without  questioning  his  ability  to  perform,  and  the  sale  fails 
of  consummation  by  the  principal's  own  fault  or  failure  to 
make  good  his  offer,  the  burden  is  on  him,  in  order  to  defeat 
the  broker's  right  to  compensation,  to  show  the  purchaser's 
want  of  financial  ability.  Dotson  v.  Milliken,  27  App.  (D.  C.) 
500.  Compare  Alt  v.  Doscher,  92  N.  Y.  S.  439,  102  App.  Div. 
344 ;  Glade  v.  Eastern  111.  Min.  Co.,  129  Mo.  App.  443 ;  Brand 
v.  Nagle,  107  N.  Y.  S.  156,  122  App.  Div.  490.  See  also  Sees. 
192,  499. 

In  an  action  for  a  broker's  commissions,  evidence  concern- 
ing arrangements  made  by  the  purchaser  procured  for  funds 
with  which  to  complete  the  purchase,  and  the  financial  ability 
of  the  concern  from  which  funds  were  to  be  secured  was  ad- 
missible. Leuschner  v.  Patrick  (Tex.  Civ.  App.  '07),  103  S. 
W.  664;  Czarnowski  v.  Holland,  5  Ari.  119,  78  P.  890;  Clark 


480  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

v.  Wilson,  41  Tex.  Civ.  App.  450,  91  S.  W.  627 ;  Fox  v.  Demargo 
Land  Co.,  37  Colo.  203,  86  P.  344. 

Slight  evidence  of  the  prospective  purchaser's  ability  to  pay 
for  the  land  is  all  that  is  necessary  in  an  action  to  recover  com- 
missions, the  only  fact  a  refusal  of  owner  to  make  the  sale. 
Bailey  v.  Padgett,  70  S.  637,  195  Ala.  203. 

Where  a  vendor  of  land  is  not  influenced  by  misrepresen- 
tations of  his  broker  as  to  the  financial  condition  of  his  ven- 
dee, such  misrepresentations  do  not  constitute  a  ground  for 
refusing  to  pay  the  broker's  commissions.  Irwin  v.  Mowbray, 
5  N.  Y.  S.  430. 

A  broker  obtained  a  customer  who  contracted  for  the  pur- 
chase of  the  property.  Before  the  time  fixed  for  performance 
the  purchaser  failed  to  obtain  an  extension  of  time  asked  for, 
because  of  his  inability  to  procure  funds.  The  purchaser,  on 
ascertaining  that  the  broker  did  not  have  the  deed  in  his  pos- 
session on  the  day  fixed  for  performance,  tendered  the  price 
and  demanded  the  deed.  The  purchaser  induced  a  bank  to 
make  the  tender,  with  the  understanding  that  the  identical 
money  would  be  returned.  The  tender  was  made  by  the  bank's 
clerks.  The  purchaser,  on  being  subsequently  given  an  op- 
portunity to  purchase  on  the  same  terms  refused  to  do  so, 
though  the  property  was  worth  more  than  the  agreed  price. 
Held,  to  show,  as  a  matter  of  law,  that  the  purchaser  was  not 
able  and  ready  to  comply  with  the  terms  of  his  agreement, 
defeating  a  recovery  by  the  broker  of  his  commissions.  Little 
v.  Herzinger,  34  Utah,  337,  97  P.  639. 

It  was  not  necessary,  in  order  to  entitle  a  real  estate  broker 
to  commissions  for  land  sold,  that  the  purchaser  should  be 
able  to  perform  at  the  time  the  contract  was  signed,  but  only 
at  the  time  fixed  for  passing  title.  Joffe  v.  Nagel,  114  N.  Y. 
S.  905. 

A  broker  employed  to  procure  a  purchaser  of  real  estate, 
who  procures  a  purchaser  capable  and  willing  to  contract  to 
purchase,  and  who  does  not  warrant  the  financial  ability  of 
the  purchaser,  and  who  is  not  guilty  of  any  fraud,  earns  his 
commissions  on  the  vendor  and  purchaser  entering  into  a  bind- 
ing contract  of  sale  and  purchase,  though  a  sale  is  not  con- 
summated because  of  the  failure  of  the  purchaser  to  perform,  for 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  431 

the  vendor  takes  the  responsibility  of  accepting  the  proposed  pur- 
chaser, and,  in  the  absence  of  contract,  the  broker  need  not  see 
that  the  purchase  money  is  paid,  nor  enforce  the  contract  of  sale. 
Moore  v.  Irvin,  89  Ark.  289,  116  S.  W.  662. 

After  a  broker  had  negotiated  a  sale  of  land,  and  the  pros- 
pective purchaser  had  been  unable  to  obtain  a  loan  with  which 
to  make  the  first  payment,  the  owner's  agent  and  the  pur- 
chaser declared  the  deal  off.  Subsequently  the  agent  gave  the 
broker  an  extension  of  time  in  which  to  procure  the  loan  of 
$7,000,  to  be  secured  by  mortgage  on  the  land,  but  he  was 
able  only  to  obtain  a  conditional  verbal  promise  from  one  per- 
son to  advance  $6,500,  secured  by  mortgage  on  the  land,  and 
an  indefinite  arrangement  with  a  banker  to  lend  $500  on  personal 
security,  on  the  usual  terms  of  bank  loans.  Held,  that  he  had 
failed  to  comply  with  the  terms  of  the  extension,  and  the  agent 
and  purchaser  were  justified  in  refusing  to  proceed  further, 
even  if  the  purchaser  was  bound  by  the  agent's  assent  to  the 
extension  of  time.  Jones  v.  Buck  (Iowa  Sup.  '09),  120  N. 
W.  112. 

Where  a  broker  employed  to  sell  property  on  specified  terms 
to  designated  persons,  effects  a  sale  to  them  on  such  terms,  he 
need  not,  in  an  action  for  his  commissions,  show  that  they  were 
able  to  make  the  purchase.  Stouteriburg  v.  Evans  (Iowa  Sup. 
'09),  120  N.  W.  59. 

A  real  estate  broker  need  not  show,  in  order  to  recover  com- 
missions, that  he  produced  a  purchaser  with  legal  tender  in 
hand,  but  only  that  the  purchaser  was  ready,  willing  and  pe- 
cuniarily able  to  pay  for  the  property  within  the  time  fixed, 
and  it  is  sufficient  if  the  purchaser  has  arranged  so  that  the 
money  will  be  available  for  payment  when  the  deed  is  deliv- 
ered, though  part  of  it  is  obtained  from  a  mortgage  on  the 
purchased  property  executed  contemporaneously  with  the  deed 
to  the  purchaser.  McCabe  v.  Jones  (Wis.  Sup.  '10),  124  N. 
W.  486. 

Where  an  offer  to  exchange  certain  property  contained  an 
agreement  binding  defendant  to  pay  plaintiff  a  commission  of 
two  and  one-half  per  cent,  of  the  value  of  defendant's  property, 
in  the  event  the  deal  was  closed,  plaintiff's  right  to  such  amount, 
on  defendant's  subsequent  refusal  to  complete  the  exchange,  did 


432  AMEEICAN   LAW  REAL   ESTATE   AGENCY. 

not  depend  on  the  fact  that  the  acceptance  of  the  offer  by  the 
other  party  was  conditional  on  the  property  agreeing  with  a  de- 
scription contained  in  the  offer,  but  solely  on  the  readiness  and 
ability  of  the  other  party  to  complete  the  exchange.  Hege  v. 
Hessell  (Wash.  Sup.  '10),  107  P.  375. 

The  rule  requiring  the  purchaser  produced  by  the  broker  to  be 
"ready,  willing  and  able  to  purchase,"  means  that  such  purchaser 
must  possess  these  qualifications  before  the  broker  is  entitled  to 
demand  that  the  owner  do  anything  in  the  matter.  Adams  v. 
Hall,  168  111.  App.  569. 

The  broker  who  repeated  to  the  seller,  though  in  good  faith, 
with  intent  to  induce  a  sale,  and  with  the  result  of  doing  so,  the 
false  and  ridiculous  statements  of  the  buyer  as  to  his  financial 
responsibility,  is  entitled  to  no  commission.  Bute  v.  Williams, 
162  S.  W.  989,  —  Tex.  Civ.  App.  — . 

Under  a  broker's  contract  entitling  him  to  commissions  "in 
case  he  effects  a  sale,"  his  right  to  compensation  accrues  when  a 
valid  contract  to  purchase  is  signed,  although  deed  is  not  executed 
and  delivered.  Cain  v.  Masurette,  162  N.  W.  287,  196  Mich.  7. 

Broker  who  brings  to  the  principal  a  purchaser  who  signed  an 
enforcible  contract  to  buy  on  owner's  terms  may  recover  on  con- 
tract his  agreed  compensation,  though  principal  is  unable  or  re- 
fuses to  perform,  or  has  so  misrepresented  the  property  to  broker 
and  purchaser  that  purchaser  does  not  consummate  the  contract. 
Nelson,  Lee  &  Green  v.  Daly,  163  K  Y.  Sup.  788. 

Though  a  purchaser  of  realty  secured  by  a  broker  was  ready 
and  willing  to  make  first  payment  called  for  by  contract  when  due, 
his  readiness  and  willingness  were  not  sufficient,  he  not  having 
made  payment,  nor  offered  to  do  so,  to  entitle  the  broker  to  com- 
mission, which  was  to  be  paid  from  such  first  payment.  Stelson  v. 
Haigler,  165  P.  265,  —  Colo.  Sup.  — . 

An  unconsummated  loan  is  not  "negotiated"  when  the  broker 
has  found  a  lender  ready  and  willing  to  advance  the  money,  but 
the  lender  must  also  be  able  to  advance  the  money.  Cameron  v. 
Ayres,  166  P.  801,  —  Cal.  Sup.  — . 

Where  purchaser  procured  by  broker  was  without  ready  cash, 
but  was  promised  a  sufficient  loan  from  persons  who  had  the 
money  wherewith  to  make  it,  he  was  ready,  willing  and  able  to 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  433 

purchase  the  property  for  cash.     Welert  T.  Roberts,  179  N.  W. 
241,  —  Mich.  Sup.  — . 

Sec.  465.    Finding  a  purchaser. 

In  the  absence  of  a  special  contract  a  broker  was  not  entitled 
to  a  commission  on  merely  bringing  a  purchaser  who  was  ready, 
willing  and  able  to  pay  the  price  demanded,  where  no  sale  was 
made  because  of  a  disagreement  as  to  when  the  transfer  should 
take  place.  Haase  v.  Schneider,  98  N.  Y.  S.  587,  112  App. 
Div.  336.  See  also  Sec.  541. 

In  an  action  for  services  in  selling  an  estate  for  defendant, 
where  he  did  not  know  till  after  the  sale  that  plaintiff  had 
done  anything  to  aid  it,  circumstances  held  to  warrant  a  deci- 
sion that  there  was  evidence  for  the  jury  of  a  continuing  offer, 
of  an  acceptance,  and  of  performance  by  the  plaintiff  of  the 
contract  to  obtain  a  purchaser.  Barnstein  v.  Laus,  104  Mass. 
214;  Storer  v.  Markley,  164  Ind.  535,  73  N.  E.  1081. 

Where  a  broker  did  not  find  a  purchaser  at  the  request  of  the 
owner,  and  submit  the  purchaser's  offer,  at  his  request,  to  the 
owner,  he  is  not  entitled  to  a  commission  from  the  owner.  John 
v.  Thrower,  75  S.  E.  819,  11  Ga.  App.  494. 

A  broker  is  entitled  to  his  commission  when  he  has  found 
a  purchaser  or  a  lender,  as  the  case  may  be,  ready,  able  and 
willing  to  purchase  the  property  or  to  lend  the  money,  in  ac- 
cordance with  the  terms  proposed  by  the  principal.  Eggland 
v.  South  (S.  D.  Sup.  '08),  118  N.  W.  719;  Beckley  v.  Newton, 
140  111.  App.  301;  Munsonv.  Carlstrom  (Iowa  Sup.  '09),  119  N. 
W.  606;  Mutchnick  v.  Davis,  114  N.  Y.  S.  997;  Little  v.  Her- 
zinger,  34  Utah,  337,  97  P.  639 ;  Caruthers  v.  Reeser,  134  111. 
App.  370;  Masterson  v.  Knight,  135  111.  App.  548;  Glover  v. 
Duffy,  112  N.  Y.  S.  1099;  Hutto  v.  Strigh,  157  Ala.  566,  47 
So.  1031;  Peach  River  Lumber  Co.  v.  Montgomery,  (Tex.  Civ. 
App.  '08),  115  S.  W.  87;  Sotsky  v.  Ginsberg,  114  N.  Y.  S,  114; 
Smith  v.  Sharp  (Ala.  Sup.  '09),  50  S.  381;  Beougher  v.  Clark, 
106  P.  39,  81  Kan.  250,  27  L.  E.  A.  (N.  S.)  198;  Knisely  v. 
Leath,  166  S.  W.  207,  256  Mo.  341,  178  S.  W.  453;  Moore  v. 
Moss,  175  S.  W.  1195,  117  Ark.  593;  Root  v.  Barbour,  118  P. 
968,  51  Colo.  399;  Stevens  v.  Bacher,  141  S.  W.  1143,  162  Mo. 
App.  284;  Ault  v.  Roberts,  143  P.  1140,  44  Okl.  143,  rev.  judg. 


434  AMERICAN   LAW  REAL  ESTATE   AGENCY. 

on  re.  130  P.  532 ;  Bellis  v.  Hann  &  Kendall,  157  S.  W.  427,  — 
Tex.  Civ.  App.  — ;  Shaw  v.  Faires,  165  S.  W.  501,  —  Tex.  Civ. 
App.  — ;  Eichoff  v.  Russell,  149  P.  146,  46  Okl.  312;  0.  L.  &  H. 
J.  Gross  v.  Tillinghost,  86  A.  721,  35  B.  I.  298;  Robertson  v. 
Allen,  184  F.  372,  107  C.  C.  A.  254;  Nofkins  v.  Poshalinsky,  76 
A.  1104,  83  Conn.  458,  20  Ann.  Cas.  1023;  Smith  v.  Tatum,  79 
S.  E.  775,  140  Ga.  719;  Phillips  v.  Brown,  120  P.  454,  21  Idaho, 
62;  Barney. v.  Yazoo  Delta  Land  Co.,  101  N.  E.  96,  179  Ind.  337; 
Avery  v.  Howell,  137  P.  785,  91  Kan.  297;  Phillips'  Ex'r  v.  Rudy, 
143  S.  W.  397,  146  Ky.  780;  Gore  v.  Griffith  Realty  Co.,  169  S. 
W.  685,  160  Ky.  241 ;  Miller  v.  Haddock,  82  A.  701,  109  Me.  98 ; 
Wheeler  v.  Lawler,  110  N.  E.  273,  222  Mass.  210;  Armstrong  v. 
Martin,  137  N.  W.  143,  171  Mich.  291 ;  Blakeslee  v.  Pedbody,  147 
N.  W.  570,  180  Mich.  408;  Lanx  v.  Hoge,123  P.  949,  45  Mont. 
445;  Rauchwanger  v.  Eatzin,  82  A.  510,  82  N.  J.  Law,  339; 
Crutchfield  v.  Webster,  120  P.  615,  31  Okl.  142 ;  Carson  v.  Vance, 
130  P.  946,  35  Okl.  584;  Reynolds  v.  Anderson,  132  P.  322,  37 
Okl.  368,  46  L.  E.  A.  (N.  S.)  144;  Hall  v.  Olson,  114  P.  638,  58 
Or.  464;  McGilvery  v.  Lawrence,  152  N.  W.  698,  35  S.  D.  443; 
Middle  Atl  Immi.  Co.  v.  Ardan,  78  S.  E.  588,  115  Va.  148;  Wig- 
gins v.  Wilson,  45  S.  1011,  55  Fla.  346;  McCabe  v.  Jones,  124 
K  W.  486,  141  Wis.  540;  Canadian  Imp.  Co.  v.  Cooper,  161  F. 
279,  88  C.  C.  A.  325;  Kelley  v.  Peacock,  76  S.  547,  115  Miss. 
555;  Raleig'h  R.  E.  Oo.  v.  Moser,  95  S.  E.  498,  175  N.  C.  255. 
And  in  case  of  a  sale,  when  the  broker  has  procured  an  enforce- 
able contract  of  sale  upon  the  principal's  terms.  Moss  &  Raley  v. 
Wren  (Tex.  Sup.  '08),  113  S.  W.  739. 

A  real  estate  agent  has  only  authority  to  find  a  purchaser  and 
report  him  to  the  owner,  and,  in  the  absence  of  a  special  agree- 
ment to  that  effect,  he  has  no  power  to  conclude  a  sale.  Minto  v. 
Moore,  55  S.  542,  1  Ala.  App.  556;  Davis  v.  Clausen,  57  S.  79, 
2  Ala.  App.  378. 

After  a  broker  has  produced  a  purchaser  who  has  entered  into 
a  contract  of  purchase,  the  fact  that  he  endeavors  to  sell  such 
purchaser  other  property  does  not  constitute  an  abandonment  of 
the  first  transaction  and  deprive  him  of  the  right  to  commissions, 
if  he  has  produced  a  purchaser  ready,  able  and  willing  to  pur- 
chase. Cowan  v.  Day,  156  111.  App.  105. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  435 

To  entitle  broker  to  commission,  the  purchaser  procured  must 
actually  purchase  upon  the  terms  agreed,  unless  his  failure  to  do 
so  is  caused  by  the  vendor's  fault.  Moore  v.  Councilman,  81  A. 
122,  115  Md.  629. 

Agent  does  not  have  to  produce  a  purchaser  "known"  to  seller 
to  be  able,  ready  and  willing  to  execute  a  contract.  Smith  v. 
Sharp  R.  E.  Co.,  77  S.  40,  —  Ala.  Sup.  — . 

Realty  broker's  agreement  with  landowner  to  procure  a  cus- 
tomer would  have  been  performed  to  the  extent  that  he,  as  ex- 
clusive agent  to  get  buyer,  might  recover  commissions,  if  land- 
owner had  made  either  an  actual  sale  to  customer  introduced  by 
him,  or  agreement  binding  such  customer  to  buy.  Bruce  v.  Me- 
serve,  117  N".  E.  830,  —  Mass.  Sup.  — . 

A  broker  is  entitled  to  commissions,  having  found  a  purchaser 
ready  and  willing  to  buy  on  authorized  terms,  though  owner  then 
withdrew  property  from  market,  she  having  a  few  days  later 
closed  a  trade  with  such  purchaser  on  such  terms.  Ferguson  v. 
Quick,  78  S.  618,  117  Miss.  692;  judg.  rev.  on  sug.  of  er.,  79 
S.  83. 

Where  broker  took  a  prospective  buyer  to  his  principal,  and  the 
prospective  buyer  decided  that  he  would  not  purchase,  and  there- 
after approached  the  principal  and  entered  into  an  agreement 
with  him  to  furnish  a  purchaser,  and  returning  the  next  day 
with  a  friend  as  purchaser,  disclosed  that  he  had  been  bargaining 
for  this  friend,  instead  of  himself,  from  the  beginning,  and  a  sale 
was  made,  the  broker  was  entitled  to  his  commission.  Hodges  v. 
Ramsey,  216  S.  W.  568,  —  Mo.  App.  — . 

Arrangement  by  prospective  purchaser  with  a  bank  to  have 
money  paid  to  owner  directly,  on  sale  of  land,  at  a  certain  time 
was,  in  fact,  having  the  actual  money  in  the  bank  as  such  time, 
as  required  by  the  contract  of  sale,  and  would  involve  the  fact 
whether  or  not  the  purchaser  was  ready  at  such  time  to  comply 
with  his  contract,  so  that  brokers  would  be  entitled  to  their  com- 
missions. Dennis  v.  Autrey  &  Ellis,  220  S.  W.  471,  —  Ark. 
Sup.  — . 

Where  broker's  claim  to  a  commission  rests  merely  on  his  find- 
ing a  purchaser,  and  not  upon  efforts  whereby  the  purchaser  was 
induced  to  make  the  purchase,  the  act  of  the  broker  must  be  the 


436  AMERICAN  LAW  HEAL   ESTATE   AGENCY. 

foundation  of  the  negotiations  between  the  purchaser  and  the 
seller.  Low  v.  Paddock,  220  S.  W.  969,  —  Mo.  App.  — . 

Eeal  estate  broker  held  entitled  to  commissions  for  procuring 
a  purchaser  for  defendant's  realty,  irrespective  of  his  agreement, 
unsupported  by  consideration,  to  postpone  his  right  thereto  until 
price  was  paid  by  buyer.  Bernstein  v.  Fulson  Realty  Co.,  152  N. 
Y.  Supp.  995. 

Readiness  and  willingness  of  the  prospective  purchaser  to  buy 
does  not  establish  a  broker's  right  to  compensation  for  producing 
him;  entry,  or  offer  to  enter,  into  a  binding  contract  with  the 
vendor,  being  essential.  Massie  v.  Chatom,  127  P.  56,  163  Cal. 
772. 

To  entitle  a  broker  to  recover  on  a  contract  by  an  owner  of 
land  to  pay  him  a  commission  for  making  a  sale  of  the  land  at 
a  stated  price,  he  must  have  fulfilled  the  contract  by  procuring 
a  purchaser  to  whom  a  sale  is  made  at  such  price,  or  who  is  will- 
ing and  able  to  pay  it,  and  it  is  not  sufficient  to  procure  one 
with  whom  the  owner  makes  an  exchange  of  lands.  Payseno  v. 
Swensen,  178  F.  999. 

A  broker  to  recover  commissions  must  either  show  a  sale  made 
to  the  purchaser  procured  by  him,  or  that  the  purchaser  was  able 
and  willing  to  buy,  and  that  failure  to  sell  was  through  no  fault 
of  the  broker  or  customer.  Carrington  v.  Graves,  89  A.  237,  121 
Md.  567;  Stevenson  v.  Bannan,  84  A.  447,  235  Pa.  512;  Speer  v. 
Benedum-Trees  Oil  Co.,  86  A.  695,  239  Pa.  180;  S.  V.  Thompson 
Co.  v.  Goldman,  51  Pa.  Super.  Ct.  632. 

If  a  broker  who  has  an  exclusive  agency  to  sell  not  coupled 
with  an  interest,  before  notice  or  knowledge  of  a  sale  by  owner, 
has  performed  his  part  of  the  contract  in  good  faith  by  procur- 
ing a  purchaser  on  terms  fixed  by  the  owner,  the  owner  is  liable 
to  the  broker  for  the  stipulated  commissions.  Staats  v.  Meng el- 
sen,  180  N.  W.  78,  —  Neb.  Sup.  — . 

In  a  broker's  action  for  commission  for  finding  a  purchaser 
ready,  able  and  willing  to  buy,  it  was  immaterial  that  the  owner's 
agent  closed  the  sale  on  terms  not  precisely  as  prescribed  by  the 
owner,  when  the  owner  refused  to  sell  the  property  to  the  pur- 
chaser found  by  the  agent  solely  because  he  had  made  a  prema- 
ture sale  to  another  purchaser,  and  not  because  of  a  variance  in 
the  terms  of  sale.  Moore  v.  Gould,  193  P.  1057,  —  Kan.  Sup.  — . 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  437 

A  broker  taking  a  prospective  purchaser  to  owner  of  land  with 
no  authority  from  the  owner  was  not  entitled  to  a  commission, 
where  a  sale  was  agreed  on  but  none  consummated.  Meachem  Y. 
Baker,  226  S.  W.  967,  —  Mo.  Sup.  — . 

Sec.  466.    Gratuities. 

Without  an  express  contract  providing  therefor,  a  broker  is 
not  entitled  to  a  commission  for  rendering  a  service  for  which, 
by  the  local  custom,  no  charge  is  made.  Conrey  v.  Hoover, 
10  La.  Ann.  437. 

It  was  proper  to  instruct  the  jury  that  defendants  were  lia- 
ble for  the  value  of  plaintiff's  services,  if  they  were  of  such 
a  character  and  rendered  under  such  circumstances  as  would 
indicate  to  a  reasonably  intelligent  business  man,  that  they 
were  not  performed  gratuitously,  and  that  compensation  was 
expected,  the  instruction  not  assuming  that  plaintiff  had  ren- 
dered all  the  services  for  which  he  asked  compensation.  Miller 
v.  Early,  22  Ky.  L.  R.  825,  58  S.  W.  789.  Whether  a  broker's 
services  were  rendered  writh  expectation  of  reward  is  a  ques- 
tion for  the  jury.  Armstrong  v.  Ft.  Edward,  159  N.  Y.  315, 
53  N.  E.  1116 ;  Darling  v.  Howe,  14  N.  Y.  S.  561,  60  Hun,  578. 
Where  an  agent  informed  his  principal  that  he  should  charge 
no  commissions  for  his  services,  he  was  held  to  be  precluded 
from  charging  commissions  during  the  life  of  the  principal, 
though  the  principal  had  recognized  the  agent's  right  to  com- 
missions. Higginson  v.  Fabre,  3  Desau.  (S.  C.)  89.  Volun- 
tary services  by  a  broker  are  mere  gratuities.  See  Mechem  on 

Ag.  Sec.  600;  also  Sec.  443. 

If  plaintiff  brokers  were  not  agents  of  lessee,  but  were  acting 
for  defendant  lessor,  who  had  knowledge  of  and  received  benefits 
of  services  rendered  in  inducing  lessee  to  lease  property,  defendant 
would  be  liable,  unless  the  dealing  he  had  with  plaintiffs,  and 
the  services  performed  by  the  latter  were  not  such  as  would  lead 
a  person  of  ordinary  understanding,  under  like  circumstances,  to 
believe  that  plaintiffs  were  acting  for  defendant  and  expecting  to 
be  paid  therefor.  Davis  v.  Geiger,  212  S.  W.  384,  —  Mo.  App.  — . 


438  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  467.    Goods  exchanged  for  land. 

Defendant  agreed  to  pay  plaintiff  a  commission  for  finding 
a  purchaser  with  whom  he  could  exchange  his  stock  of  goods 
for  land,  and  the  plaintiff  secured  a  contract  with  P.  to  ex- 
change a  certain  tract  of  land  for  defendant's  stock  of  goods, 
but,  by  a  mistake  of  P.,  the  land  described  in  the  contract  was 
not  owned  by  him ;  it  did  not  appear  that  defendant  was  aware 
of  the  mistake.  Held,  that  plaintiff  was  not  entitled  to  a  com- 
mission. Snyder  v.  Fidler,  135  Iowa,  304,  112  N.  W.  546. 

Sec.  468.    Broker  entitled  to  commission  in  stock  of  insurance 

company 

A  broker  was  employed  to  procure  a  purchaser  of  a  farm 
for  an  agreed  commission;  he  found  a  purchaser  who  pur- 
chased the  farm  and  paid  for  it  in  the  stock  of  an  insurance 
company;  the  owner  agreed  to  transfer  to  the  broker  shares 
of  such  stock,  but  failed  to  do  so.  Held,  that  the  broker  was 
entitled  to  recover  the  agreed  commission.  Rider  v.  Pell,  51 
N.  Y.  669.  See  also  Sec.  377.  Compare  Sec.  480. 

Sec.  469.    Broker  entitled  to  commissions  where  sale  was  en- 
joined. 

An  agent  who,  under  a  contract,  produced  a  person  able 
and  willing  to  purchase  real  estate  is  entitled  to  his  commis- 
sions, although  the  sale  is  afterwards  enjoined.  Gibson  v. 
Gray,  17  Tex.  Civ.  App.  646,  43  S.  W.  922.  See  also  Sec.  473. 

Sec.  470.    When  broker  is  not  entitled  to  full  commission 
until  price  paid. 

"Where  the  purchase  money  of  a  mine  was  payable  in  in- 
stallments, and  the  broker's  commissions  were  to  be  deducted 
from  each  installment  as  paid,  it  is  error  to  render  judgment 
for  the  full  amount  of  commissions  before  all  the  installments 
have  been  paid.  Gorham  v.  Heiman,  90  Cal.  346,  27  P.  289; 
Coate  v.  Locust  Ft.  Co.,  102  Md.  291,  162  A.  625;  Hartman  v. 
Selling,  189  P.  887,  —  Or.  Sup.  — ;  Arnold  v.  La  Bell  Oil  Co., 
190  P.  815,  —  Cal.  App.  — .  See  also  Sees.  297,  570. 

If  the  owner  provided  that  he  shall  receive  a  certain  sum  be- 
fore the  broker  is  entitled  to  any  commissions,  the  broker  must 
complete  the  sale,  and  the  owner  must  realize  such  specified  sum 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  439 

before  the  broker  can  recover  anything  by  way  of  commissions. 
Nudelman  v.  Wildes,  100  111.  App.  134. 

Sec.  471.    Broker  not  informing  principal  of  customer  defeats 
commissions. 

A  real  estate  agent  who  fails  to  induce  a  customer  to  pay 
the  price  of  land  demanded  by  the  owner,  but  predicts  that 
he  will  ultimately  pay  the  price,  is  not  entitled  to  commissions 
where  the  owner  afterwards  sells  the  lands  to  others  for  such 
price,  without  knowing  that  it  was  actually  purchased  for  the 
customer,  the  court  holding  that  the  broker  was  not  the  procur- 
ing cause  of  the  sale.  Goldstein  v.  Walters,  7  N.  Y.  S.  756,  8  N. 
Y.  S.  957,  15  Daly,  397;  Sandon  &  Huso  v.  Ersenhus,  168  N.  W. 
801,  —  Iowa  Sup.  — ;  Haggart  v.  King,  190  P.  763,  —  Kan. 
Sup.  — .  See  also  Sees.  235,  312,  431.  Compare  Sec.  799. 

Sec.  472.    Knowledge  by  broker  that  principal  owns  but  part 

of  the  property  offered,  does  not  defeat  his  commissions. 

A  broker's  right  to  commissions  for  procuring  a  purchaser 

for  land  under  an  agreement  therefor,  is  not  affected  by  the 

fact  that  he  knew  the  principal  had  title  to  only  five-sixths  of 

the  land.    Martin  v.  Ede,  103  Cal.  157,  37  P.  199. 

Sec.  473.    Litigation  instituted  by  third  persons  does  not  de- 
feat the  broker's  right  to  commissions. 
A  broker  is  entitled  to  commissions  where  a  purchaser  was 
obtained  through  his  agency,  the  agreement  for  sale  and  pur- 
chase being  complete,  and  only  prevented  from  consummation 
by  litigation  instituted  by  third  persons.     Moore's  Est.,  9  Pa. 
Dist.  R.  675.     See  also  Sec.  469. 

Sec.  474.    Methods  of  earning  .commissions  by  broker. 

There  are  at  least  three  different  methods  of  earning  com- 
missions under  an  agency  for  the  sale  of  real  estate  (1)  by 
effecting  a  binding  contract  of  sale,  under  authority  given  to 
the  agent  to  make  a  contract  for  the  principal;  (2)  by  produc- 
ing a  purchaser  to  whom  a  sale  is  in  fact  made,  and  (3)  by 


440  AMERICAN  LAW  HEAL  ESTATE   AGENCY. 

producing  a  purchaser  ready,  willing  and  able  to  buy  on  the 
terms  specified  in  the  agency  agreement.  McDermott  v.  Ma- 
Jioney,  139  Iowa,  292,  115  N.  W.  32. 

Sec.  474a.    A  broker  employed  to  sell  real  estate  is  not  re- 
quired to  prepare  a  contract  of  purchase. 

A  broker  employed  to  sell  real  estate  is  not  required  to 
prepare  a  contract  of  purchase.  Brackenridge  v.  Claridge,  42 
S.  W.  1005,  91  Tex.  527;  O'Connell  v.  Casey,  92  N.  E.  804,  206 
Mass.  520. 

Sec.  475.    Broker  who  merely  brings  the  parties  together  is 
a  middleman,  and  may  recover  from  each. 

If  the  broker  merely  brings  together  two  parties  who  desire 
to  exchange  or  sell  their  lands,  and  his  employment  then  ends, 
and  the  parties  themselves  settle  the  terms  of  the  transaction, 
he  is  a  mere  middleman,  and  may  recover  from  each  party,  if 
each  has  agreed  to  pay  him.  Clark  v.  Allen,  125  Cal.  276,  57 
P.  985;  Green  v.  Robertson,  64  Cal.  75;  Manders  v.  Croft,  3 
Colo.  App.  236,  32  P.  836 ;  Cox  v.  Haun,  127  Ind.  325,  26  N.  E. 
822;  Midler  v.  Kutzlel),  1  Bush.  (Ky.)  253;  Dolph  v.  Wain- 
scott,  14  Ky.  L.  R.  (abst.)  304:  Montrose  v.  Eddy,  94  Mich. 
100,  53  N.  W.  916;  Ranney  v.  Donovan,  78  Mich.  318,  44  N. 
W.  276;  Child  v.  Ptomey,  17  Mont.  502,  43  P.  714;  Norton  v. 
Genesse  Nat.  Sav.,  etc.,  Ass'n,  68  N.  Y.  S.  32,  57  A.  D.  520; 
Knaus  v.  Gottfried  Krueger  Brewing  Co.,  142  N.  Y.  70,  36  N. 
E.  867;  Siegel  v.  Gould,  1  Lans.  (N.  Y.)  177;  Pollatschiek  v. 
Goodwin,  40  N.  Y.  S.  682,  17  Misc.  587,  75  St.  86 ;  Bonwell  v. 
Auld,  29  N.  Y.  S.  15,  9  Misc.  65 ;  Jarvis  v.  Schaefer,  105  N.  Y. 
289,  11  N.  E.  634;  Bolheimer  v.  Richardt,  55  How.  Pr.  (N.  Y.) 
414;  Haviland  v.  Price,  26  N.  Y.  S.  757,  6  Misc.  372;  Collins 
v.  Fowler,  8  Mo.  App.  588;  Orion  v.  Scho field,  61  Wis.  382; 
McClure  v.  Luke,  154  Fed.  647;  Bass  v.  Talbert  (Tex.  Civ. 
App.  '08),  112  S.  W.  1077;  Ross  v.  Carr  (N.  M.  Sup.  '09), 
103  P.  307;  Grasinger  v.  Lucas  (S.  D.  Sup.  '09),  123  N.  W. 


COMMISSION   AND  COMPENSATION   OF  AGENTS.  441 

77;  Sternberger  v.  Young  (N.  J.  Eq.  '10),  75  A.  807.  See  also 
Sees.  557,  578. 

Real  estate  brokers  are  "middlemen"  in  respect  to  a  sale  of 
property  only  where  they  merely  bring  the  parties  together  to 
deal  for  themselves,  standing  indifferently  between  them,  they  hav- 
ing undertaken  to  act  as  agent  for  neither.  Geddes  v.  Van  Rhee, 
148  N.  W.  549,  126  Minn.  517. 

A  broker,  when  acting  as  a  middleman,  simply  undertakes  to 
bring  the  parties  together,  and  does  not  negotiate  for  either,  and 
may  make  a  contract  to  receive  a  commission  from  both,  with  or 
without  the  other's  consent.  Clapton  v.  Godfrey,  139  N".  W.  893, 
158  Iowa,  376;  SilberTcraus  v.  Winnie,  142  K  Y.  Supp.  887,  158 
App.  Div.  50;  Langford  v.  IssenhutJi,  134  K  W.  889,  28  S.  D. 
451;  Jordan  v.  Anderson,  155  N.  W.  769,  36  S.  D.  508;  Leake  v. 
Rcaief,  140  S.  W.  814,  —  Tex.  Civ.  App.  — ;  T.  A.  Hill  &  Son 
v.  Potion  &  Schwartz,  160  S.  W.  1155,  --  Tex.  Civ.  App.  — ; 
Peters  v.  RiJey,  81  S.  E.  530,  73  W.  Va.  785;  Litts  v.  Morse,  130 
N.  W.  460,  145  Wis.  472;  King  v.  Reed,  141  P.  41,  24  Cal. 
App.  229. 

A  party  claiming  commissions  who  was  not  a  real  estate  broker, 
but  a  mere  middleman,  in  view  of  his  undertaking  being  to  ob- 
tain a  certain  price  specified  by  the  owner,  was  under  no  obliga- 
tion to  undertake  to  obtain  a  higher  price,  and  even  if,  without 
the  knowledge  of  the  owner,  he  arranged  to  receive  a  commission 
from  both  sides,  he  was,  notwithstanding,  entitled  to  recover  his 
compensation  for  effecting  the  transaction.  Jones  v.  Mo.  Lumber 
&  Mining  Co.,  166  111.  App.  266. 

One  employed  merely  to  bring  together  persons  desirous  to 
exchange  property,  or  sell  and  buy,  is  a  "middleman,"  agent  for 
neither,  and  entitled  to  receive  commissions  from  both.  Tracey 
v.  make,  118  N.  E.  271,  229.  Mass.  57. 

Where  a  real  estate  broker  acts  as  middleman  in  bringing  to- 
gether two  parties,  and  has  made  no  agreement  as  to  commis- 
sions, he  is  entitled  to  receive  a  commission  from  the  purchaser, 
though  he  has  already  received  one  equal  to  the  amount  claimed 
from  the  seller  subsequent  to  the  completion  of  the  transaction. 
Fpiess  v.  Ford,  71  Pa.  Super.  Ct.  210. 


442  AMERICAN   LAW  EEAL  ESTATE   AGENCY. 

Quaere?  Whether  one  who  acts  as  middleman,  merely  bring- 
ing the  vendor  and  vendee  together  to  make  their  own  contract, 
without  aid,  advice  to  or  interference  on  behalf  of,  either,  may 
recover  compensation  from  both,  without  knowledge  by  one 
of  such  arrangement  with  the  other.  Harten  v.  Loeffler,  31 
App.  D.  C.  362.  Compare  Sec.  578. 

Sec.  476.    Sale  of  mine  by  broker,  not  within  description,  not 

entitled  to  commissions. 

An  agreement  providing  that  defendant  should  pay  the 
plaintiff  a  certain  commission  on  any  sale  made  through  him, 
or  to  pay  the  same  percentage  "on  any  sale  made  through  a 
certain  bond  or  agreement  made  with  Robert  Hennegan  of  this 
city,  on  certain  mining  property  in  said  agreement  in  Ures 
District,  State  of  Sonora,  Mexico/'  does  not  provide  for  com- 
missions on  a  sale  made  through  plaintiff  of  mines  situated  in 
the  District  of  Arispe.  Wulff  v.  Lindsay,  8  Ariz.  168,  71  P.  963 ; 
Gillespie  v.  Eosenbaum,  173  N.  Y.  Sup.  429.  See  also  Sees.  59, 
181.  Compare  Sec.  550. 

Sec.  476a.     Broker  not  performing  contract  who  produces 
contract  to  buy  asking  for  abstract  additional. 

An  agreement  by  a  purchaser  to  purchase  if  abstracts  showed 
title  to  the  satisfaction  of  the  purchasers  therein,  is  not  a  per- 
formance of  the  broker's  agreement  to  sell,  specifying  the  terms, 
which  made  no  reference  to  abstracts.  Weitbrec  v.  Morris,  163 
P.  1119,  —  Colo.  Sup.  — . 

Sec.  477.    Modification  of  contract,  not  assented  to  by  broker, 

does  not  affect  commissions. 

Defendant's  agreement  to  pay  plaintiff  a  certain  amount 
for  furnishing  a  purchaser  for  land  is  not  revoked  by  de- 
fendant's statement  to  plaintiff,  after  furnishing  the  name  of 
one  who  afterwards  became  a  purchaser,  that  he  would  pay 
no  commission  to  any  agent  on  a  sale  of  the  land  unless  a 
certain  price  was  obtained,  the  plaintiff  not  having  assented 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  443 

to  the  modification.  Burd  v.  Webster,  128  Wis.  118,  107  N". 
W.  23;  Odell  v.  Dozier,  104  Ga.  203,  30  S.  E.  813;  Levistone 
v.  Landreux,  6  La.  Ann.  26;  Glade  v.  Eastern  III.  Min.  Co., 
129  Mo.  App.  443,  107  S.  W.  1002;  Cody  v.  Dempsey,  83  N.  Y. 
S.  899,  86  App.  Div.  335;  Mottos  v.  Engle,  15  S.  D.  330,  89 
K  W.  651;  Mark  \.  Elliott,  90  N.  Y.  S.  331;  Blair  v.  Slosson, 
27  Tex.  Civ.  App.  403,  66  S.  W.  112;  Bishop  v.  Averill,  17 
Wash.  209,  49  P.  237,  50  P.  1024;  Heimberger  v.  Rudd,  138  N. 
W.  374,  30  S.  D.  289;  Malloy  v.  Interstate  Inv.  Co.,  114  P.  167, 
62  Wash.  487;  Arnold  v.  Schmeidler,  129  N.  Y.  Sup.  408,  144 
App.  Div.  420;  17.  8.  Farm  Loan  Co.  v.  Darter,  183  P.  696,  - 
Cal.  App.  — .  See  also  Sees.  51,  485. 

Sec.  477a.    When  told  of  prospective  purchaser  by  broker, 
owner  may  then  raise  the  price. 

When  land  was  listed  with  broker  at  a  certain  net  price,  and 
broker  showed  the  land  one  morning  to  a  party  who  showed  an 
interest  at  the  listed  price,  and  made  an  appointment  to  return 
in  the  afternoon,  and  broker  then  told  owner  that  he  had  a  pros- 
pective purchaser,  the  owner  had  the  right  to  raise  the  price  at 
said  time.  McLafferty  v.  Payne,  215  S.  W.  680,  —  Ark.  Sup.  — . 

Sec.  478.    Modification  of  contract  by  owner  in  broker's  pres- 
ence did  not  affect  commissions. 

The  fact  that  the  terms  of  a  sale  of  realty,  as  stated  to  the 
broker,  were  modified  by  the  owners  as  to  the  commissions,  in  the 
broker's  presence,  and  the  purchaser's  proposal  as  to  the  method 
of  payment,  would  not  relieve  the  owner  from  liability  for  com- 
missions. Huntmer  v.  Arent,  16  S.  D.  465,  93  N.  W.  653;  Parks 
v.  Sullivan,  152  S.  W.  704,  —  Tex.  Civ.  App.  — ;  Stout  v.  Thorn- 
hill,  79  S.  154,  —  Ala.  App.  — .  See  also  Sec.  51. 

Sec.  479.     Modification  of  contract  by  broker  performing 
other  services  modifies  right  to  commissions. 

Where  a  broker's  duty  is  not  merely  to  procure  a  purchaser, 
but  to  perform  some  other  agreed  services,  within  a  reasonable 
time  or  within  a  limited  time,  the  general  rule  as  to  what  is  re- 


444  AMERICAN   LAW   EEAL   ESTATE    AGENCY. 

quired  of  him  to  be  entitled  to  his  commissions  is  modified  accord- 
ingly.   PMnzy  v.  Bush,  129  Ga.  479,  59  S.  E.  259. 

Sec.  479a.    Owner  must  satisfy  broker's  right  to  commission 
in  the  one  of  two  methods  left  to  exercise. 

Where  a  contract  for  a  real  estate  agent's  commission  reserved 
to  the  principal  a  choice  between  two  methods  of  satisfaction,  and 
he  disables  himself  from  adopting  one,  he  must  adopt  the  other. 
Avery  v.  Nichols,  153  P.  557,  96  Kan.  777. 

Sec.  480.    Broker  agreeing  to  accept  corporate  stock  for  com- 
missions, not  entitled  to  recover  in  money. 

Where,  by  the  contract  in  regard  to  a  sale  of  property,  a 
broker  arranges  with  all  the  parties  that  the  compensation  shall 
be  paid  in  certain  stock  of  a  company  to  be  formed  by  him 
and  others  to  buy  the  land,  he  can  not  hold  the  vendors  re- 
sponsible for  the  amount  of  such  compensation.  Bowles  v. 
Allen  (Va.  Sup.),  21  S.  E.  665.  Compare  Sec.  468. 

Sec.  481.    Net  price  to   owner,   does   not  entitle  broker  to 
excess. 

A  real  estate  broker  to  sell  land  for  a  certain  net  price  is 
not  entitled,  in  the  absence  of  a  contract  therefor,  to  the  ex- 
cess over  such  price  that  he  may  obtain  for  the  land.  Snow 
v.  McFarlane,  51  111.  App.  448;  Turnley  v.  Michael  (Tex.  Civ. 
App.  '91 ),  15  S.  W.  912;  Wolf  grain  c.  Dill,  166  N.  W.  309,  — 
S.  D.  — .  Compare  Deming  Inv.  Co.  v.  Meyer  (Okla.  *07),  91 
P.  846.  See  also  Sec.  456. 

And  where  a  broker  was  authorized  to  sell  land  for  $3  per  acre 
net  to  the  owner,  and  was  offered  $3.50  by  a  purchaser,  who  sub- 
sequently bought  the  land  of  the  owner,  without  the  broker's  in- 
termediation, the  broker  could  not  recover  fifty  cents  per  acre 
from  the  purchaser,  but  his  action  was  against  the  owner,  as  it 
was  his  duty  to  sell  for  the  best  price  obtainable,  and  account 
to  the  owner  therefor,  less  a  reasonable  compensation.  Boysen  v. 
Robertson,  70  Ark.  56,  68  S.  W.  243. 


COMMISSION   AND  COMPENSATION  OF  AGENTS.  445 

Sec.  482.    Net  price  to  owner,  broker  selling  thereat  not  en- 
titled to  any  commission. 

A  broker  was  orally  employed  to  procure  a  purchaser  of  a 
farm  within  five  days,  at  a  price  which  should  net  the  owner 
$11,000  and  the  broker  $875;  thereafter  the  broker  stated  in 
writing  that  any  arrangement  made  by  his  agent  and  the  own- 
er would  be  satisfactory;  that  he  would  have  persons  look  at 
the  farm  before  the  expiration  of  the  five  days,  and  that  any 
arrangement  should  be  made  in  writing;  the  owner  wrote  that 
he  would  give  the  broker  "a  price  of  $11,000  on"  the  farm 
for  ten  days,  "reserving  the  privilege  to  sell  to  others;"  the 
broker  sent  his  agent  to  the  owner,  with  a  writing,  for  the 
purpose  of  making  sure  of  a  commission  if  the  sale  was  made. 
Held,  that  the  written  contract  agreed  to  by  the  broker,  and 
the  owner's  written  statement,  which  superseded  the  oral  con- 
tract, conferred  on  the  broker  the  right  to  sell  the  farm  at  a 
sum  which  would  give  the  owner  $11,000,  and  on  the  owner 
the  right  to  sell  it  to  any  purchaser  not  procured  by  the  bro- 
ker, and  authorized  a  sale  to  a  purchaser  procured  by  the  bro- 
ker for  as  low  a  price  as  $11,000,  if  the  broker's  agent  in  charge 
of  the  transaction  was  willing  to  do  it,  unless  the  owner  knew 
that  the  agent  was  acting  contrary  to  his  instructions.  Haven 
v.  Tartar,  124  Mo.  App.  691,  102  S.  W.  21 ;  Babcock  v.  Merritt, 
1  Colo.  App.  84,  27  P.  882 ;  Rees  v.  Spruance,  45  111.  308 ;  Bur- 
nett v.  Betts,  236  111.  499,  86  N.  E.  258;  S  anger  v.  Wilson,  52 
111.  App.  117;  Antisdell  v.  Canfield,  119  Mich.  229,  77  N.  W. 
944;  Williams  v.  McGraw.  52  Mich.  480,  18  N.  W.  227;  Holcomb 
v.  Stafford,  102  Minn.  233,  113  N.  W.  449 ;  Beatty  v.  Eussell, 
41  Neb.  321,  59  N.  W.  919 ;  Hottrook  v.  Inv.  Co.,  30  Ore.  259, 
47  P.  920;  Ames  v.  Lamont,  107  Wis.  531,  83  N.  W.  780;  Wol- 
verton  v.  Turtle,  51  Ore.  501,  94  P.  961;  White  v.  Gaida,  168 
S.  W.  473,  --  Tex.  Civ.  App.  — ;  Gilmore  v.  Bolio,  131  N.  W. 
105,  165  Mich.  633,  34  L.  E.  A.  (K  S.)  1050;  Ciss  v.  Gales,  153 
S.  W.  1088,  168  Mo.  App.  282.  See  also  Sees.  456,  560. 

In  some  jurisdictions,  in  such  case  the  broker  is,  nevertheless, 
entitled  to  recover  of  the  owner  a  reasonable  compensation  for 
his  services.  Alexander  v.  Breedon,  14  B.  Mon.  (Ky.)  125; 
AiTcin  v.  Allan,  14  Manitoba,  549;  Ford  v.  Brown,  120  Cal.  551, 


446  AMERICAN   LAW   REAL   ESTATE    AGENCY. 

52  P.  817.  But  can  not  recover  where  the  sale  is  not  completed. 
Seattle  Land  Co.  v.  Day,  2  Wash.  451,  27  P.  74. 

An  agreement  for  the  sale  of  real  estate  for  a  net  amount  to 
the  owners,  the  person  making  the  sale  to  have  as  compensation 
what  he  could  get  above  that  amount,  entitled  him  to  no  compen- 
sation for  making  a  sale  until  the  owners  received  the  net  amount 
stipulated,  unless  a  failure  to  do  so  was  due  to  their  own  fault. 
Burnett  v.  Botts,  236  111.  499,  86  N.  E.  258. 

Where  an  owner  listed  his  land  with  a  broker  at  $80  per  acre 
net  to  the  owner,  and  the  broker  found  a  purchaser  at  $82.50  per 
acre,  and  presented  a  contract  to  the  owner  calling  for  a  price  of 
$80  per  acre,  and  the  owner  signing  it  stated  that  he  was  to  pay 
no  commission,  the  owner,  on  cancelling  the  contract,  with  the 
consent  of  the  purchaser,  was  not  liable  for  commissions.  Mc- 
Carty  v.  Bristow,  145  S.  W.  1029,  —  Tex.  Civ.  App.  — . 

Where  owners  of  a  ranch  listed  it  with  an  agent  for  sale  at 
$35  net  price  per  acre,  the  agent  to  procure  his  commission  out 
of  some  advanced  price,  and  later  told  agent  that  if  he  could  get 
an  offer  of  $35,  commission  might  be  adjusted,  and  agent  did  not 
obtain  such  offer,  and  some  time  later  a  person  who  had  promised 
agent  to  consider  it,  bought  it  directly  from  the  owners  at  that 
price,  the  owners  were  not  liable  under  special  contract  to  agent 
for  commission,  where  record  showed  no  bad  faith  or  unfair 
dealing  on  their  part  toward  agent.  Karr  v.  Moffett,  185  P.  890, 
re.  den.  187  P.  683,  —  Kan.  Sup.  — . 


CHAPTER  VII. 


SECTION. 

483.  Net  price  to  owner  and  note  for 

excess  to  broker — On  vendor's 
refusal  broker  entitled  to  com- 
mission. 

484.  Net    price,    broker    entitled    to 

excess  from  first  payment 
made. 

485.  Where  owner  changed  contract 

from  gross  to  net  price  liable 
to  broker  for  commissions. 

486.  Broker's  commissions  computed 

on  actual  sum  received. 

487.  Failing  to  disclose  that  nominal 

is  not  the  real  purchaser  does 
not  defeat  broker's  commis- 
sions. 

487a.  Liability  to  broker  for  commis- 
sion depends  upon  real  parties 
to  bargain. 

488.  Broker  entitled  to  commissions 

where  non-performance  of  con- 
tract not  occasioned  by  his 
fault. 

489.  Where     neither     principal     nor 

broker  effecting  sale  had  no- 
tice of  other  broker's  negotia- 
tions he  is  not  entitled  to 
commissions. 

489a.  Direct  sale  by  owner  to  unknown 
broker's  customer  defeats  lat- 
ter's  right  to  commission. 

490.  Principal  selling  before  expira- 

tion of  time  given  broker 
without  notice,  broker  entitled 
to  commissions. 

491.  Reporting  offer  of  $16,000  in- 

stead of  $15,000  did  not  de- 
prive broker  of  commissions. 


SECTION. 

492.  Oral  contract  to  sell  land  followed 

by  written  contract  entitled 
broker  to  commissions. 

492a.  Specific  supersedes  prior  indef- 
inite contract  of  agency. 

492b.  Parol  contract  cannot  take  prop- 
erty out  of  hands  of  broker 
held  under  written  one. 

492c.  Broker's  specific  written  con- 
tract supersedes  ordinary  rule 
as  to  payment  of  commissions. 

493.  Broker  entitled  to  commissions 

for  sale  of  four  houses,  not 
entitled  to  proportionate 
amount  for  one. 

493a.  Broker  entitled  to  commission 
for  sale  of  house  on  install- 
ments. 

494.  Broker  entitled  to  commissions 

for  sale  of  lots,  not  entitled  to 
same  rate  for  large  body  of 
land. 

495.  Broker  promised  commissions  for 

selling  part,  entitled  to  the 
same  rate  for  selling  all. 

496.  Broker  who  failed  to  sell  all  en- 

titled to  commissions  on  sale 
of  part  by  owner  to  customer. 

496a.  Broker  employed  to  sell  entire 
tract  of  land  must  do  so  to 
earn  commission. 

496b.  On  owner  wrongfully  terminat- 
ing contract  to  sell  entire  tract, 
broker  entitled  to  value  of 
services  rendered. 

496c.  Selling  in  different  acreage  por- 
tions from  that  prescribed 
barred  broker  of  commission. 

447 


448 


AMERICAN   LAW   REAL    ESTATE    AGENCY. 


SECTION. 

496d.  Broker  entitled  to  commissions 
when  three-fourths  of  collec- 
tions enough  to  pay  them. 

497.  Share  of  profits  on  sale  through 

sub-agent    not    defeated     by 
unfair  dealing  of  latter. 
497a.  Broker  entitled  to  share  of  profits 
on  resale  of  land  purchased. 

498.  Commissions    payable    on    sale, 

and  not  on  collection  of  de- 
ferred payments. 

498a.  Agreement  by  broker  to  wait  for 
commission  until  owner  sold 
farm,  held  to  mean  for  a  rea- 
sonable time. 

499.  Commissions  are  due  when  con- 

tract is  made  with  purchaser 
produced  by  broker. 

499a.  Broker's  commissions  are  earned 
when  contract  of  exchange  is 
executed. 

499b.  Commissions  not  due  until  ac- 
tual transfer  made. 


SECTION. 

499c.  Owner  who  refused  to  convey 
land  liable  to  broker  for  com- 
mission, though  date  of  settle- 
ment fixed  as  time  of  payment. 

499d.  When  lease  not  executed  broker 
barred  commission  under  his 
contract. 

499e.  Where  contract  provided  pur- 
chaser should  pay  broker's 
commission,  on  owner's  breach, 
latter  not  liable  therefor. 

499f.  Where  broker  guilty  of  fraud  or 
misrepresentation,  defeating 
sale,  not  entitled  to  com- 
mission. 

499g.  Broker  entitled  to  commission, 
although  agreement  contem- 
plated execution  of  a  further 
contract. 

499h.  Although  contract  provided  for 
payment  of  commissions  as 
purchases  paid,  on  breach 
all  became  due. 


Sec.  483.    Net  price  to  owner  and  note  for  excess  to  broker, 

on  vendor's  refusal  broker  entitled  to  commissions. 
Defendant  employed  plaintiff  to  effect  a  sale  of  his  land 
so  as  to  yield  $2,500.  plaintiff  to  receive  as  compensation  all 
she  could  obtain  above  that  sum;  she  procured  a  purchaser  for 
$2,880,  $2,500  to  be  paid  to  defendant  in  cash,  and  plaintiff  to  re- 
ceive the  purchaser's  notes,  secured  by  mortgage,  f. or  the  balance; 
defendant  refused  to  convey.  Held,  that  he  was  liable  to  plaintiff 
for  her  loss.  Canfield  v.  Orange,  13  N.  D.  622,  102  N.  W.  313 ; 
Foster  v.  Taylor,  44  Wash.  313,  87  P.  358;  Van  Gorder  v. 
Sherman,  81  Iowa,  403,  46  N.  W.  1087 ;  Luhn  v.  Fordtran  (Tex. 
C.  A.  '08),  115  S.  W.  667. 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  449 

Sec.  483a.    Broker  not  entitled  to  commission  when  to  be  paid 
by  purchaser  who  defaulted. 

Owners  of  land  gave  brokers  notes  in  payment  for  services 
payable  only  out  of  the  money  to  be  paid  by  W.,  purchaser,  or 
his  assigns.  The  contract  between  owner  and  purchaser  provided 
that  on  default  of  the  purchaser,  or  a  release  to  the  purchaser, 
forfeited  all  rights.  The  purchaser  defaulted,  and  the  owner 
brought  suit  to  quiet  title,  after  which  the  purchaser  assigned 
his  rights  to  a  corporation  and  the  action  was  dismissed.  The 
corporation,  on  ascertaining  the  forfeiture,  instituted  independent 
negotiations  with  the  owner  and  purchased  the  property.  Held, 
that  the  brokers  were  not  entitled  to  commissions.  Edwards  v. 
Baker,  180  P.  33,  —  Cal.  App.  — . 

Sec.  484.    Net  price,  broker  entitled  to  excess  from  first  pay- 
ment made. 

Where  a  land-owner  employed  a  broker  to  sell  land  on  an 
understanding  that  he  should  have  as  his  commissions  any- 
thing that  could  be  obtained  over  a  specified  price,  the  broker 
was  entitled  to  his  commissions  out  of  the  first  payment  made 
by  the  purchaser.  Young  v.  Ruhwedel,  119  Mo.  App.  231,  96 
S.  W.  228.  See  also  Sees.  498,  499. 

Sec.  485.    Where  the  owner  changed  the  contract  from  gross 
to  net  price  liable  to  broker  for  commissions. 

Plaintiff  procured  a  contract  authorizing  him  to  sell  defend- 
ant's timber  land  on  a  five  per  cent,  commission,  and,  having 
found  a  purchaser,  presented  to  defendant  for  his  signature 
an  option  giving  the  grantee  the  right  to  purchase  in  sixty 
days;  defendant,  before  signing  the  option,  but  without  any 
conversation  with,  the  plaintiff,  changed  the  same  so  as  to  read 
that  the  price  was  "net  cash"  to  him.  Held,  that  such  altera- 
tion meant  that  the  price  was  net  cash  to  defendant,  as  between 
him  and  the  purchaser,  and  had  no  reference  to  defendant's 


450  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

contract  with  plaintiff  for  commissions.     Love  v.  Scatcherd,  146 
Fed.  1,  77  C.  C.  A.  1.    See  also  Sec.  477. 

Sec.  486.    Broker's  commissions  computed  on  actual  amount 
received. 

An  agent  who  agreed  to  sell  a  farm  for  two  per  cent,  on 
a  certain  amount,  and  three  per  cent,  on  all  received  in  excess 
of  that  amount,  is  not  entitled  to  commissions  on  the  value  of 
part  of  a  crop  which  he  knew  belonged  to  another,  and  which 
was  deducted  from  the  gross  amount  received.  Barrett  v.  John- 
son, 64  Pa.  St.  223;  Oliver  v.  Little  (Nev.  Sup.  '09),  103  P. 
240;  Weeks  v.  Smith  (N.  J.  Sup.  '10),  75  A.  773;  Blakeley  v. 
Pursell,  90  N.  Y.  S.  337. 

An  agreement  between  two  brokers  to  divide  the  commission 
on  sale  of  certain  lands  means  net  commission,  and  one  of  them 
having  expended  $200  in  making  the  sale  was  entitled  to  a  credit 
for  that  sum  on  the  whole  commission.  Jones  v.  Kehoe,  112  P. 
497,  61  Wash.  422. 

Sec.  487.    Failing  to  disclose  that  nominal  is  not  the  real  pur- 
chaser does  not  defeat  the  broker's  commissions. 

A  mere  failure  to  disclose  to  the  principal  that  the  nominal 
purchaser  is  not  the  real  purchaser  does  not  amount  to  a  fraud 
to  deprive  the  broker  of  commissions.  Veasey  v.  Carson,  177 
Mass.  117,  58  N.  E.  177,  53  L.  R.  A.  241.  See  also  Sees.  525, 
452. 

Sec.  487a.    Liability  to  broker  for  commissions  depends  upon 
the  real  parties  to  the  bargain. 

Liability  to  a  broker  for  commissions  is  not  dependent  upon 
what  parties  formally  entered  into  the  written  contract  of  sale 
offered  to,  or  negotiated  in  by,  the  principal,  but  wholly  upon 
who  constituted  the  "real"  parties  to  the  bargain.  McLaughlin 
v.  Campbell  (N.  J.  Err.  &  App.  '09),  74  A.  530.  See  also  Sec. 
317. 

Sec.  488.    Broker    entitled    to    commissions    where    non-per- 
v  ,     formance  of  contract  not  occasioned  by  his  fault. 

A  broker  is  entitled  to  a  commission  where  the  customer 
found  by  him  and  the  principal  enter  into  an  enforceable  con- 
tract of  purchase  or  sale,  although  one  or  both  of  the  parties 


COMMISSION   AND  COMPENSATION  OF  AGENTS.  451 

refuse  to  comply  with  the  contract,  and  the  failure  is  not  at- 
tributable to  the  fault  of  the  broker.  Jenkins  v.  H  oiling  sworth, 
83  111.  App.  139;  Flynn  v.  Jordal,  124  Iowa,  457,  100  N.  W. 
326;  Bach  v.  Emrich,  35  N.  Y.  Super.  Ct.  548;  Folinsbee  v. 
Sawyer,  36  N.  Y.  S.  405,  15  Misc.  293;  Brown  v.  Helmuth,  21 
N.  Y.  S.  615,  2  Misc.  566;  Donohue  v.  Flanagan,  9  N.  Y.  S.  273, 
28  N.  Y.  S.  757;  Larson  v.  Burroughs,  116  N.  Y.  S.  358;  Feist 
v.  Jerolamon,  75  A.  751,  81  N".  J.  Law,  437;  Stocking  v.  Ruth, 
141  S.  W.  570,  —  Tex.  Civ.  App.  — ;  Eetcliam  v.  Axelman,  142 
N.  W.  62,  160  Iowa,  456;  WomacJc  v.  Douglas,  163  S.  W.  1130, 
157  Ky.  716;  Reasoner  v.  Yates,  134  N.  W.  651,  90  Neb.  757; 
Clark  v.  Battaglia,  47  Pa.  Super.  Ct.  290;  Irons  v.  Snyder,  49 
Pa.  Super.  Ct.  522;  Hamburger  &  Dreyling  v.  Thomas,  126  S. 
W.  560,  103  Tex.  280;  Fleming  v.  Hattan,  142  P.  971,  92  Kan. 
948;  Levy  v.  Dunken  Realty  Co.,  179  S.  W.  679,  den.  re.  178  S. 
W.  984,  —  Tex.  Civ.  App.  — ;  Herrick  v.  Woodam,  127  S.  W. 
391,  143  Mo.  App.  258;  Herrick  v.  Maness,  127  S.  W.  394,  142 
Mo.  App.  399;  Bell  v.  Stedman,  130  N.  W.  257,  88  Neb.  625; 
Koliha  v.  Jonas,  154  N.  W.  556,  98  Neb.  790;  Greenblatt  v.  Fox, 
59  Pa.  Super.  Ct.  53;  Wilson  v.  Buck,  162  S.  W.  1018,  --  Tex. 
Civ.  App.  — ;  Stanton  v.  Carnanan,  115  P.  339,  15  Cal.  App.  527; 
Valerius  v.  Luhring,  127  N.  W.  112,  87  Neb.  425;  Einnon  v.  Poe- 
rachke,  133  N.  Y.  Sup.  528;  Bledsoe  v.  Lombard,  194  S.  W.  518, 
-  Mo.  App.  — ;  Fuday  v.  Gill,  161  N.  W.  900,  —  Mich.  Sup.  — ; 
Stewart  v.  Bowles,  185  P.  868,  —  Cal.  App.  — ;  Robertson  v. 
Koeltitzky,  217  S.  W.  543,  —  Mo.  App.  — ;  Casey  v.  Hart,  Wal- 
lace &  Co.,  222  S.  W.  Ill,  —  Ky.  Ct.  App.  — ;  Stablein  v.  Ge- 
meinde,  177  N.  W.  810,  —  S.  D.  Sup.  — ;  Morgan  v.  W.  A.  How- 
ard Realty  Co.,  191  P.  114,  —  Colo.  Sup.  — ;  Underwood  v.  Dus- 
kin  &  Stewart  Realty  Co.,  85  S.  845,  —  Ala.  App.  — ;  Cooper  v. 
Newsom,  224  S.  W.  568,  —  Tex.  Civ.  App.  — ;  Chandler  v. 
Games-Ferguson  Realty  Co.,  224  S.,W.  484,  --  Ark.  Sup.  — ; 
Garner  v.  Davis,  225  S.  W.  567,  —  Tex.  Civ.  App.  — . 

Sec.  489.  Where  neither  principal  nor  broker  effecting  sale 
had  notice  of  other  broker's  negotiations,  he  is  not  en- 
titled to  commissions. 

Where  neither  the  principal  nor  the  broker  effecting  the  sale 
had    notice   of   former   negotiations   with   the   other   broker   the 


452  AMERICAN   LAW  REAL   ESTATE   AGENCY. 

latter  is  not  entitled  to  a  commission,  especially  where  she  failed 
to  bring  the  buyer  and  seller  to  an  agreement.  Raines  v.  Barney, 
67  N.  Y.  S.  164,  33  Misc.  748;  Martin  v.  Billings,  2  N.  Y.  City 
Ct.  86;  Kifer  v.  Yoder,  198  Pa.  St.  308,  47  A.  674;  Glasscock  v. 
Vanfleet,  100  Tenn.  603,  46  S.  W.  449;  Single  v.  Russell,  80  A. 
164,  114  Md.  418.  See  also  Sees.  360,  558. 

There  are  cases  holding  that,  irrespective  of  notice,  the  com- 
mission belongs  to  the  broker  who  is  the  procuring  cause  of  the 
sale.  Scott  v.  Lloyd,  17  Colo.  401,  35  P.  733,  and  Sec.  446. 

Sec.  489a.    Direct  sale  by  owner  to  unknown  broker's  cus- 
tomer defeats  latter 's  right  to  commission. 

Under  broker's  contract  to  find  a  cash  purchaser  of  property, 
price  to  be  determined  by  negotiations  between  owner  and  buyer, 
where  sale  was  made  directly  by  owner,  but  not  on  cash  terms, 
broker  is  not  entitled  to  commission  unless  seller  had  notice  that 
buyer  was  procured  by  him.  Fawley  v.  Sheldon,  163  N.  W.  585, 
—  Iowa  Sup.  — . 

Sec.  490.    Principal  selling  before  expiration  of  time  given 
broker,  without  notice,  broker  entitled  to  commissions. 

A  broker  is  entitled  to  commissions  where  the  principal  sells 
before  the  expiration  of  the  agency,  without  giving  the  broker 
notice  of  the  sale.  Woodall  v.  Foster,  91  Tenn.  195,  18  S.  W. 
241 ;  Cadigan  v.  Craltree,  186  Mass.  7,  70  N.  E.  1033,  66  L.  E. 
A.  982 ;  ReisTius-Remer  Land  Co.  v.  Benner,  91  Minn.  401,  98  N". 
W.  186 ;  Payne  v.  Tvntchell,  81  A.  350,  81  N.  J.  Law,  193 ;  Mac- 
Bride  v.  Rogers,  85  A.  202,  83  N.  J.  Law,  407.  (This  is  contrary 
to  the  doctrine  that  a  sale  puts  an  end  to  an  agency,  and  if  his 
contract  has  been  violated  the  broker  has  a  right  of  action  for  the 
breach.)  See  Sec.  15. 

Sec.  491.    Reporting  offer  of  $16,000  instead  of  $15,000  did 
not  deprive  broker  of  commission. 

The  fact  that  a  broker  reports  to  his  principal  that  an  offer 
of  $16,000  for  the  land  has  been  made  instead  of  $15,000,  does 
not  affect  his  right  to  a  commission  where,  as  a  result  of  his 
negotiations,  a  sale  for  the  smaller  sum  was  made.  PeckJiam  v. 
Ashhurst,  18  R.  I.  376,  28  A.  357.  See  also  Sees.  215,  502. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  453 

Sec.  492.    Oral  contract  to  sell  land,  followed  by  written  con- 
tract, entitles  the  broker  to  commissions. 

Rev.  Stat.  1899,  Sec.  3418,  provides  that  no  contract  for  the 
sale  of  lands  made  by  an  agent  shall  be  binding  on  the  prin- 
cipal unless  the  agent  is  authorized  in  writing  to  make  the  eon- 
tract.  Held,  that  where  a  land-owner  orally  employed  a  broker 
to  find  a  purchaser,  and  the  broker  made  a  written  contract 
with  the  purchaser,  the  production  thereof  to  the  land-owner 
was  equivalent  to  the  production  of  a  purchaser;  since,  if  the 
owner  had  chosen  to  ratify  the  contract,  it  would  have  been 
binding.  Young  v.  Ruhwedel,  119  Mo.  App.  231,  96  S.  W.  228; 
Dougherty  v.  Smith,  192  S.  W.  1131,  —  Tex.  Civ.  App.  — ;  Puf- 
fer v.  Bodley,  181  P.  1,  —  Or.  Sup.  — . 

Sec.  492a.     Specific  contract  supersedes  prior  indefinite  con- 
tract of  agency. 

A  contract  employing  a  broker  to  procure  a  purchased  for  a 
specified  sum  held  to  supersede  a  prior  contract  indefinite  in 
terms.  Arizona  Parrall  Mining  Co.  v.  Forbes,  146  P.  504,  16 
Ariz.  395. 

Sec.  492b.    Parol  contract  can  not  take  property  out  of  hands 
of  broker  held  under  written  one. 

A  parol  agreement  between  the  owner  and  the  broker  held  to 
preclude  the  taking  of  the  property  out  of  the  hands  of  the  agent 
as  provided  in  a  former  written  instrument.  Shadwick  v.  Smith, 
143  S.  W.  1027,  147  Ky.  159. 

Sec.  492c.    Broker's  specific  written  contract  supersedes  ordi- 
nary rule  as  to  payment  of  commissions. 

Written  agreement  between  a  broker  and  the  owner  as  to  the 
amount  and  payment  of  his  commission;  held,  to  supersede  the 
ordinary  rule  that  a  broker  earns  his  commission  when  he  pro- 
cures the  execution  of  a  valid  agreement  for  sale.  Clark  v.  Hovey, 
105  N.  E.  222,  217  Mass.  485. 


454  AMERICAN   LAW  EEAL  ESTATE   AGENCY. 

Sec.  493.    Broker  entitled  to  commissions  for  sale  of  four 
houses,  not  entitled  to  proportionate  amount  for  one. 

Where  a  broker  is  entitled  to  a  commission  of  one-third  of 
the  excess  above  a  certain  amount  realized  on  a  sale  of  four 
houses,  he  is  not  entitled  to  a  proportionate  amount  on  the  sale 
of  only  one  house.  Meyer  v.  Haaren,  5  N.  Y.  S.  436,  57  N.  Y. 
Super.  Ct.  574.  Compare  Sec.  495. 

Sec.  493a.    Broker  entitled  to  commission  for  sale  of  house  on 
installments. 

A  broker  employed  to  sell  a  house  on  installments  is  entitled 
to  his  commission  upon  procuring  one  ready  to  enter  into  an  op- 
tion contract  with  owner,  and  penalty  of  forfeiture  in  case  of  non- 
performance,  satisfactory  to  the  owner,  even  though  the  purchaser 
failed  to  carry  out  his  option,  that  being  a  risk  run  by  the  owner. 
Robinson  v.  Lowe,  155  S.  W.  51,  169  Mo.  App.  443. 

Plaintiff  held  entitled  to  a  commission  for  procuring  a  house 
for  defendant,  though  the  house  was  bought  by  defendant  and  his 
daughter.  Weiss  v.  Weiss,  154  N".  Y.  Sup.  202. 

Sec.  494.    Broker  entitled  to  commissions  for  a  sale  of  lots, 
not  entitled  to  same  rate  for  a  large  body  of  the  land. 

A  contract  to  pay  a  certain  commission  on  a  sale  of  lots  at 
a  fixed  price  out  of  a  body  of  land,  does  not  entitle  the  agent 
to  a  commission  at  the  same  rate  for  a  large  body  of  the  land. 
Louisville  Bdg.  Ass'n  v.  Began,  20  Ky.  L.  E.  1629,  49  S.  W.  796. 

Sec.  495.    Broker  promised  commissions  for  selling  part,  en- 
titled to  the  same  rate  for  selling  all. 

Where  defendant  agreed  to  pay  plaintiff  for  his  services  one- 
half  of  the  proceeds  of  the  sale  of  two  mining  claims,  but  in 
the  sale  of  these,  with  others,  the  interests  are  not  separately 
valued,  the  plaintiff  is  entitled  to  recover  one-half  of  the  entire 
proceeds  of  the  sale,  if  it  is  impossible  to  determine  what  pro- 
portion should  be  credited  to  the  claims  in  which  he  is  inter- 
ested. Huff  v.  Hardwick,  19  Colo.  App.  416,  75  P.  593.  Com- 
pare Sec.  493. 


COMMISSION   AND   COMPENSATION  OF   AGENTS.  455 

Sec.  496.    Broker  who  failed  to  sell  all,  entitled  to  commis- 
sions on  sale  of  part  by  owner  to  his  customer. 

"Where  >a  broker  was  employed  to  sell  a  whole  tract  of  land, 
or  a  part  thereof,  and  after  negotiating  the  broker  failed  to 
make  a  sale  and  an  attempt  was  made  to  discharge  him;  but 
he  continued  his  negotiations,  and  subsequently  the  owner  sold 
a  portion  of  the  tract  to  a  person  with  whom  the  broker  had 
prior  negotiations,  the  owner  was  held  liable  to  pay  the  broker 
a  proportionate  commission.  Diamond  v.  Wheeler,  80  N.  Y.  S. 
416,  80  App.  Div.  58;  Thompson  v.  Sargeant,  134  P.  7,  66  Or. 
384;  B.  J.  &  B.  F.  Camp  Lumber  Co.  v.  Teddie,  82  S.  86,  —  Fla. 
Sup.  See  to  contrary,  Carpenter  v.  Atlas  Imp.  Co.,  108  N.  Y.  S. 
547,  123  App.  Div.  706.  See  also  Sees.  455,  967. 

Sec.  496a.    Broker  employed  to  sell  entire  tract  of  land  must 
do  so  to  earn  commission. 

A  contract  consisting  of  letters  engaging  real  estate  brokers  to 
find  a  purchaser  for  land,  in  consideration  for  which  they  were 
to  receive  all  of  the  price  received  in  excess  of  $10  per  acre,  con- 
strued and  held  not  to  authorize  brokers  to  find  a  purchaser  for 
any  part  of  the  tract  less  than  the  whole.  Bentley  v.  Edwards, 
146  N.  W.  347,  125  Minn.  179,  Ann.  Cas.  1915  C,  882,  51  L.  R. 
A.  (N.  S.)  254;  Cone  v.  Keil,  124  P.  548,  18  Cal.  App.  675. 

A  broker  employed  to  procure  within  a  specified  time  a  pur- 
chaser at  a  specified  price  does  not  earn  his  commission  by  procur- 
ing a  person  willing  to  purchase  a  part  of  the  property  at  a  re- 
duced price,  though  the  owner  after  the  specified  time  sells  to 
such  person  at  a  reduced  price.  Young  v.  Stecher  Cooperage  Wlcs., 
168  S.  W.  611,  259  Mo.  215. 

Sec.  496b.    On  owner  wrongfully  terminating  contract  to  sell 
entire  tract,  broker  entitled  to  value  of  services  rendered. 

Where  defendant,  without  right,  terminated  a  contract  provid- 
ing for  closing  of  each  sale  as  made,  but  not  entitling  plaintiffs 
to  compensation  unless  they  sold  the  entire  tract,  plaintiffs  held 
entitled  to  recover  the  reasonable  value  of  the  services  which  they 
rendered.  Boydstun  v.  Hackney  Land  Credit  Co.,  177  N.  W.  779, 
—  Minn.  Sup.  — . 


456  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  496c.    Selling  in  different  acreage  portions  from  that  pre- 
scribed barred  broker  of  commission. 

Where  a  broker  was  only  authorized  to  sell  the  entire  tract,  or  a 
certain  specified  part  thereof,  he  could  not  recover  commissions 
upon  selling  a  part  of  the  tract  of  a  different  acreage  than  that 
which  he  was  authorized  to  sell.  Boyd  v.  Big  Three  Ranch  Co., 
133  P.  623,  22  Cal.  App.  108. 

Sec.  496d.    Broker  entitled  to  commissions  when  three-fourths 
of  collections  enough  to  pay  them. 

Under  a  real  estate  brokerage  contract  giving  the  broker  a  com- 
mission of  20%  of  the  list  price  and  one-half  of  the  overage  on 
the  prices  obtained  above  the  list  price,  broker  is  entitled  to  his 
full  compensation  when  %  of  the  collections  are  sufficient  to  pay 
them,  though  the  collections  to  that  time  are  not  equal  to  the  list 
price.  Hopewell  Heights  Dev,  Co.  v.  Kagey-Marshall  Realty  Co., 
102  S.  E.  582,  —  Va.  Sup.  — . 

Sec.  497.    Share  of  profits  on  sale  through  sub-agent  not  de- 
feated by  unfair  dealing  of  latter. 

Where  plaintiff,  who  was  the  sales  agent  for  certain  prop- 
erty, authorized  defendant  to  sell  the  same,  and  agreed  to  di- 
vide the  profits  with  him,  any  unfair  dealing  on  defendant's 
part  with  plaintiff's  principal,  not  affecting  the  sale,  did  not 
affect  the  plaintiff's  right,  as  against  defendant,  to  share  in 
the  profits  of  the  sale,  in  the  absence  of  participancy  by  plain- 
tiff in  defendant's  wrong.  Madler  v.  PozorsU,  124  Wis.  477, 
102  N.  W.  892.  See  also  Sec.  520.  Compare  Sec.  522 

Sec.  497a.    Broker  entitled  to  share  of  profits  on  re-sale  of 
land  purchased. 

Agreement  that  defendant  was  to  have  one-third  of  profits  on 
resale  of  land  purchased  by  plaintiff,  held,  complied  with,  where 
defendant  looked  after  property,  and  was  helpful  in  negotiations 
resulting  in  sale  to  another.  Alexander  v.  Critcher,  94  S.  E.  335, 
—  Va.  Sup.  — . 


Wl 


COMMISSION  AND  COMPENSATION   OF  AGENTS.  457 

Sec.  498.    Commissions  payable  on  sale,  and  not  on  collection 
of  deferred  payments. 

fhere  a  vendor  instructed  his  agent  that  he  would  take  $15 
per  acre  for  his  part  of  the  land,  and  accepted  the  terms  of  a 
sale  for  part  cash  and  part  in  deferred  payments,  with  security, 
the  agents'  compensation  is  due  when  the  sale  is  completed,  and 
not  on  collection  of  the  deferred  payments.  Hancock  v.  Dodge, 
85  Miss.  728,  37  S.  711 ;  Wallace  v.  Shepard,  42  Texas  Civ.  App. 
594,  94  S.  W.  151.  See  also  Sec.  484. 

Sec.  498a.    Agreement  by  broker  to  wait  for  commission  until 
owner  sold  farm  held  to  mean  for  a  reasonable  time. 

An  agreement  hy  a  broker  to  take  his  client's  note  for  his  com- 
mission, and  wait  for  its  payment  until  the  client  sold  the  farm 
received  in  exchange,  was  merely  an  agreement  to  wait  for  a  rea- 
sonable time  for  a  sale  of  the  farm,  and  did  not  make  his  right  to 
commissions  depend  upon  its  sale.  Goldsberry  v.  Thomas,  165 
S.  W.  1179,  178  Mo.  App.  334. 

Sec.  499.    Commissions  are  due  when  contract  is  made  with 
purchaser  produced  by  broker. 

Real  estate  commissions  become  due  and  payable  when  the 
broker  has  produced  a  purchaser  with  whom  the  owner  entered 
into  a  valid  and  enforceable  contract.  Dennis  v.  Walters,  123  111. 
App.  93. 

Where  a  broker  has  procured  a  purchaser  acceptable  to  the 
seller,  and  an  enforceable  written  contract  is  made  between 
them,  the  broker's  right  to  commissions  is  not  dependent  on  the 
purchaser's  ability  to  pay  for  the  land.  Hamburger  v.  Thomas 
(Tex.  Civ.  App.  '09),  118  S.  W.  770;  Hudson  P.  Ross  Co.  v. 
Goodale,  Perry  &  Wright,  169  K  Y.  Sup.  446;  McCartney  v. 
Shaves,  188  P.  663,  —  Okl.  Sup.  — .  Compare  Sec.  464.  See  also 
Sees.  484,  504. 

Sec.  499a.     Broker's  commissions  are  earned  when  contract 
of  exchange  is  executed. 

Where  a  broker  is  employed  to  effect  an  exchange  of  property. 
he  earns  his  commission  when  the  contract  of  exchange  is  exe- 


458  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

cuted.    EoTikolil  v.  Sussmann,  113  N.  Y.  S.  586,  61  Misc.  246. 
See  also  Sec.  449. 

Sec.  499b.    Commission  not  due  until  actual  transfer  made. 

A  note  evidencing  the  commission  to  be  paid  to  plaintiff  for 
procuring  a  purchaser  for  defendant's  land  was  directed  to 
plaintiff  and  signed  and  delivered  by  the  defendant.  It  pro- 
vided that  if  the  deal  pending  between  defendant  and  a  third 
party  for  an  exchange  of  property  was  consummated,  defend- 
ant would  pay  plaintiff  $1,000  commissions.  Held,  that  no 
commission  was  due  until  the  actual  transfer  of  the  title  of 
the  property  by  an  exchange  of  deeds.  Goodwin  v.  Sieman, 
106  Minn.  368,  118  N.  W.  1008;  Wilson  v.  Rafter,  174  S.  W. 
137,  188  Mo.  App.  356.  See  also  Sec.  449. 

Sec.  499c.  Owner  who  refused  to  convey  land  liable  to  broker 
for  commission,  though  date  of  settlement  fixed  as  time 
of  payment. 

A  vendor  of  land  who  agreed  to  pay  real  estate  brokers  their 
commission  on  the  day  of  settlement,  but  refused  to  convey,  is 
liable,  though  a  date  of  settlement  was  fixed  by  the  contract. 
EaucJiwanger  v.  Katzin,  82  A.  510,  82  N.  J.  Law,  339. 

Sec.  499d.  When  lease  not  executed,  broker  barred  commis- 
sion under  his  contract. 

In  an  action  for  brokers'  commissions  for  furnishing  tenants, 
that  the  defendant  refused  to  execute  a  lease,  a  contract  between 
defendant  and  the  brokers  that  they  should  not  be  entitled  to 
commissions  unless  the  lease  was  actually  executed;  held,  a  bar 
to  their  right  to  commissions.  Williams  v.  Ashner,  137  N.  Y. 
Sup.  275,  152  App.  Div.  447. 

Sec.  499e.  Where  contract  provided  purchaser  should  pay 
broker's  commission,  on  owner's  breach,  latter  not  liable 
therefor. 

Where  a  contract  between  the  broker  and  the  owner  specified 
that  the  purchaser  should  pay  broker's  commissions,  the  broker 
could  not  recover  commissions  from  the  owner,  under  the  con- 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  459 

tract,  though  he  refused  to  complete  a  sale  to  the  purchaser  pro- 
cured. Robinson  v.  Oklahoma  Fire  Ins.  Co.,  155  P.  202,  —  Okl. 
Sup.  — . 

Sec.  499f.    Where  broker  guilty  of  fraud  or  misrepresenta- 
tion, defeating  sale,  not  entitled  to  commission. 

Where  a  broker  is  engaged  to  procure  a  purchaser  for  de- 
fendant's premises,  and  defendant  enters  into  mutual  contract 
with  the  purchaser  so  procured,  the  broker's  commission  is 
earned,  as  a  general  rule,  but  where  the  commission  is  agreed 
upon,  on  the  theory  that  the  deal  shall  go  through,  and  it  does 
not,  through  no  fault  of  the  principal,  or  where  the  deal  is  not 
consummated  because  of  fraud  or  misrepresentation  of  material 
facts  by  the  broker  to  his  principal,  the  latter  does  not  become 
liable  because  of  his  acceptance  of  the  purchaser.  Marks  v. 
Schultze,  177  111.  App.  638. 

Sec.  499g.    Broker  entitled  to  commission  although  agreement 
jr contemplated  execution  of  a  further  contract. 

Vendor's  broker  is  entitled  to  commissions,  where  prospective 
purchaser  executes  valid  contract  of  purchase,  although  such 
agreement  contemplated  that  it  would  be  followed  by  another 
contract.  Karahadian  v.  Lockett,  165  P.  552,  —  Cal.  App.  — .  V_ 

Sec.  499h.    Although  contract  provided  for  payment  of  com- 
missions as  purchaser  paid,  on  breach,  all  became  due. 

Where  broker's  contract  with  owner  providea  xor  payment  of 
commissions  pro  rata  as  purchase  price  was  paid,  broker  is  en- 
titled to  entire  commission  upon  cancellation  of  owner's  contract 
with  purchaser  by  mutual  consent  of  owner  and  purchaser.  Ratz- 
leff  v.  Trainor-Desmond  Co.,  183  P.  269,  —  Cal.  App.  — . 

Where  vendor,  having  agreed  to  pay  broker  commissions  pro 
rata  upon  the  payment  of  purchase  price,  after  payment  of  first 
20%  conveyed  title  to  the  land,  and  assigned  its  interest  in  the 
contracts  to  another  party,  the  entire  commission  became  due, 
vendor  having  in  effect  abandoned,  and  made  it  impossible  to 
carry  out  its  contract  with  purchasers  procured  by  broker.  Id. 


CHAPTER  VIII. 


SECTION. 

500.  Broker  entitled  to  commissions 

on  actual  payment  by  default- 
ing vendee. 

500a.  Broker  limited  to  commissions 
on  $1,000,  although  property 
later  sold  for  $12,500. 

501.  Broker's   right   to    commissions 

not  defeated  because  to  be 
paid  from  purchase  money. 

502.  Principal  liable  for  commissions 

on  sale  to  customer  at  lower 
price,  unless  fixed  price  re- 
quired. 

503.  Where  principal  agreed  to  pay 

commissions  upon  receipt  of 
price,  broker  not  entitled  be- 
fore. 

503a.  Broker  not  entitled  to  commis- 
sion for  contract  to  purchase 
differing  as  to  deferred  pay- 
ments. 

504.  Commissions  are  usually  payable 

upon  completion  of  the  trans- 
action. 

505.  Broker  entitled  to  commissions 

although  purchaser  pays  more 
than  he  authorized  him  to 
offer. 

506.  Where  purchaser  defaulted  bro- 

ker entitled  to  commissions 
on  actual  payments. 

507.  Cases  where  plaintiff  was  held 

not  to  be  the  procuring  cause 
of  sales,  and  not  entitled  to 
commissions. 

507a.  Broker  who  is  the  procuring 
of  sale  entitled  to  commission. 

508.  Where  sale   frustrated   through 
460 


SECTION. 

failure  to  partition,  broker 
entitled  to  commissions. 

509.  Partial  performance  entitled  bro- 

ker to  recover  neither  on  con- 
tract nor  on  quantum  meruit. 

510.  Agent  in  charge  of  real  estate 

securing  responsible  tenant, 
entitled  to  recover  on  a 
quantum  meruit. 

511.  On  principal  selling,  broker  could 

recover  for  services  on  a 
quantum  meruit. 

512.  Principal  selling   for   less   than 

agreed  price,  broker  entitled  to 
recover  on  a  quantum  meruit. 

513.  In   the   absence   of  an   express 

contract  broker  procuring  a 
purchaser  may  recover  on  a 
quantum  meruit. 

513a.  In  absence  of  fixed  rule  measure 
of  broker's  compensation  the 
value  of  the  service  rendered. 

514.  Demand  by  broker  for  $10,000 

to  release  lien  defeated  his 
right  to  commissions. 
514a.  Owner  entitled  to  counterclaim 
for  expenses  of  suit  to  remove 
cloud  on  title  caused  by  bro- 
ker recording  contract  breached 
by  his  misrepresentations. 

515.  First  broker  held  to  have  right 

to  commissions  by  second's 
relinquishment. 

515a.  Waiver  of  variance  in  contract 
by  acquiescence. 

515b.  Owner  accepting  purchaser 
waived  requirement  from  bro- 
ker as  to  financial  ability. 


COMMISSION  AND  COMPENSATION  OF  AGENTS. 


461 


SECTION. 

515c.  Broker  must  prove  financial 
ability  of  purchaser,  and  ordi- 
narily this  not  waived  by 
owner's  acceptance. 

515d.  Broker  to  recover  commission 
must  show  that  variance  in 
purchaser's  contract  was 
waived  by  owner. 

515e.  Where  owner  paid  second  broker 
for  furnishing  purchaser,  first 
having  waived  his  rights,  lat- 
ter not  entitled  to  recover. 

515f.  Waiver  by  party  to  exchange 
that  other  party  should  as- 
sume mortgage  on  former's 
premises. 

516.  If   authority   to   secure   a   pur- 

chaser is  revocable  broker 
finding  after  barred  commis- 
sions. 

517.  If    the    customer    reserves    the 


SECTION. 

right  to  withdraw  from  trans- 
action if  title  bad,  if  exercised 
bars  commissions. 

517a.  On  breach  of  contract  to  ex- 
change lands,  broker  cannot 
recover  from  wrongdoer  the 
commission  agreed  to  be  paid 
by  other  party. 

518.  Unless    exclusive    rival    broker 

entitled  to  commissions  on 
sale  by  the  other. 

519.  Broker  and  sub-agent  stand  in 

similar  relations  as  to  com- 
pensation as  do  principal  and 
agent. 

520.  Sub- agent  entitled  to  share  in 

commissions  though  he  vio- 
lated instructions. 

520a.  Broker  liable  to  sub-agent 
though  property  on  sale  found 
not  to  belong  to  vendor. 


Sec.  500.    Broker  entitled  to  commissions  on  actual  payments 

by  defaulting  vendee. 

The  owner  of  land  authorized  a  broker  to  make  a  sale  there- 
of, "commissions  to  be  paid  out  of  the  payments  as  made," 
and  a  letter  in  setting  forth  the  terms  of  sale  provided  that 
on  default  by  the  purchaser  all  prior  payments  should  be  for- 
feited, and  neither  party  have  any  claim  on  the  other;  the  bro- 
ker found  a  purchaser  who  gave  a  deed  of  trust  to  secure  the 
payments,  and  subsequently  defaulted;  thereafter,  the  vendor 
released  the  vendee  from  his  obligations  and  conveyed  to  an- 
other, and  the  broker  sued  for  commissions  on  the  entire  price. 
Held,  that  the  contract  between  the  parties  did  not  entitle  the 
broker  to  commissions  except  on  those  payments  actually  made 
by  the  vendee.  Murray  v.  Richard,  103  Va.  132,  48  S.  E.  871 ; 
Peters  v.  Anderson,  88  Va.  1051,  14  S.  E.  974.  See  also  Sees. 
297,  506. 


462  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  500a.    Broker  limited  to  commissions  on  $1,000,  although 
property  later  sold  for  $12,500. 

Plaintiff  negotiated  a  lease  of  lands  belonging  to  W.,  under 
a  verbal  contract  whereby  he  was  to  receive  a  commission  of 
one-third  the  rent  per  annum.  Before  the  expiration  of  the 
lease  W.  died,  and  the  defendant  was  appointed  administrator 
of  the  estate.  The  lessees  were  $17,500  in  default  for  rent, 
and  defendant  foreclosed  the  landlord's  lien  on  a  growing 
crop  on  the  premises  for  the  arrears  in  rent,  purchasing  the 
same  for  $1,000  at  the  foreclosure  sale.  Thereafter  defendant 
sold  the  crop  to  other  parties  for  $12,500,  and  plaintiff,  who 
had  never  received  any  commissions  from-  the  rents,  brought 
an  action  to  recover  therefor,  claiming  one-third  commissions 
on  the  $12,500  paid  defendant,  on  the  theory  that  it  was  a  part 
of  the  balance  due  on  the  rent.  Held,  that  plaintiff  was  entitled 
only  to  a  commission  on  the  $1,000  paid  by  defendants  for  the 
crop,  since  the  foreclosure  was  to  effect  a  payment  of  the  rent, 
and-  as  such  the  amount  thereby  received  was  credited,  not  the 
subsequent  sale  of  the  property  purchased.  Sckultz  v.  Goldman, 
1  Ariz.  279,  64  P.  425. 

Sec.  501.    Broker's  right  to  commissions  not  defeated  because 
to  be  paid  from  purchase  money. 

A  broker  may  recover  a  commission  of  his  principal,  although 
the  sale  made  is  not  consummaited,  if  it  fails  solely  on  account 
of  a  defect  in  the  vendor's  title  of  which  the  broker  was  neither 
notified  nor  had  personal  knowledge,  although  the  commission 
was  to  be  paid  out  of  the  proceeds  of  sale.  Cheatham  v.  Yar- 
Irough,  90  Tenn.  77,  15  S.  W.  1076.  See  also  Sec.  570.  For 
the  contrary  doctrine,  where  actual  sale  was  not  made  as  pro- 
vided by  contract.  Bull  v.  Price,  1  Bing.  (Eng.)  237,  9  L.  J.  C., 
P.,  0.  S.  78.  See  also  Sec.  458. 

Sec.  502.    Principal  liable  for  commissions  on  sale  to  customer 
at  lower  price,  unless  a  fixed  price  required. 

Where  a  principal  makes  a  sale  to  a  purchaser  found  by  the 
broker,  having  availed  himself  fo  the  broker's  services,  he  is 
liable  for  the  commission,  although  the  sale  is  made  at  a  lower 
price  than  that  originally  proposed  by  him  to  the  broker.  Crook 


COMMISSION  AND  COMPENSATION   OF  AGENTS.  463 

v.  Forst,  116  Ala.  395,  22  S.  540;  W&liams  v.  Bishop,  11  Colo. 
App.  378,  53  P.  239;  Schegal  v.  Allerton,  65  Conn.  260,  32  A. 
363;  Baker  v.  Murphy,  105  111.  App.  151 ;  Wright  v.  McClintock, 
136  Mo.  App.  438 ;  Loehde  v.  Halsey,  88  111.  App.  452 ;  Stievil  v. 
Lally,  89  Ark.  195,  115  S.  W.  1134;  McConaughty  v.  Mehannah, 

28  111.  App.  169;  Plant  v.  Thompson,  42  Kan.  664,  22  P.  726; 
Ratts  v.  Shepherd,  37  Kan.  20,  14  P.  496;  Hancock  v.  Stacey 
(Tex.  Civ.  App.  '09),  116  S.  W.  177;  Hubachek  v.  Hazzard,  83 
Minn.  437,  86  N.  W.  426;  McCormack  v.  Henderson,  100  Mo. 
App.  647,  75  S.  W.  171;  Stinde  v.  Bleach,  42  Mo.  App.  578; 
Lawson  v.  Black  Diamond  Coal  Mining  Co.  (Wash.  Sup.  '09), 
102  P.  759;  Wetqell  v.  Wagoner,  41  Mo.  App.  509;  Martin  v. 
Silliman,  53  N.  Y.  615;  Martin  v.  Pagan,  88  N.  Y.  S.  472,  95 
App.  Div.  154 ;  Levy  v.  Coogan,  9  N.  Y.  S.  534,  16  Daly,  137 ; 
Chilton  v.  Butler,  1  E.  D.  Smith,  150;  Hobos  v.  Edgar,  51  N. 
Y.  S.  1120,  23  Misc.  618 ;  Gold  v.  Serrell,  26  N.  Y.  S.  5,  6  Misc. 
124;  Steinfeld  v.  Strom,  63  N.  Y.  S.  966,  31  Misc.  167:  Keys 
v.  Johnson,  68  Pa.  St.  42;  Byrd  v.  Frost  (Tex.  Civ.  App.  '94), 

29  S.  W.  46;  Pierce  v.  Nichols   (Tex.  Civ.  App.   '08),  110  S. 
W.  206 ;  Barnes  v.  German  Sav.,  etc.,  Soc.,  21  Wash.  448,  58  P. 
569;  Tinkleton  v.  Spurck,  115  111.  App.  521;  Weeks  v.  Smith 
(N.  J.  Sup.  '10),  75  A.  773;  Blake  v.  Perrin,  242  F.  54,  154 
C.  C.  A.  646;  Rowland  v.  Progressive  Inv.  Co.,  202  S.  W.  257, 
—  Mo.  App.  — ;  Millage  v.  Irwin,  187  P.  825,  —  Colo.  Sup.  — ; 
Arnold  v.  La  Belle  Oil  Co.,  190  P.  815,  —  Cal.  App.  — . 

Unless  the  right  to  a  commission  is  made  conditional  upon 
a  sale  being  effected  at  the  price  fixed  in  the  broker's  authority. 
Armes  v.  Cameron,  19  D.  C.  435;  Buhl  v.  Noe,  51  111.  App. 
622;  Schwartz  v.  Yearly,  31  Md.  270;  Child*  v.  Ptomey,  17 
Mont.  502,  43  P.  714;  Briggs  v.  Rowe,  I  Abb.  Dec.  (N.  Y.)  189, 
4  Keyes,  424;  Steinfeld  v.  Storm,  63  N.  Y.  S.  966,  31  Misc.  167; 
Largent  v.  Story  (Tex.  Civ.  App.  '01),  61  S.  W.  977;  McArthur 
v.  Slosson,  53  Wis.  41,  9  N.  W.  784;  Newton  v.  Conness  (Tex. 
Civ.  App.  '08),  106  S.  W.  892;  Ryan  v.  Page,  134  Iowa,  60, 
111  N.  W.  405 ;  Bridgeman  v.  Hepburn,  13  Brit.  Col.  389. 

Sec.  503.    Where  principal  agreed  to  pay  commissions  upon 
receipt  of  price,  broker  not  entitled  before. 

The  principal  agreed  to  pay  the  broker  a  commission  for 
selling  land  when  the  vendees  paid  a  certain  sum  and  gave 


464  AMEKICAN   LAW   REAL  ESTATE   AGENCY. 

their  note  and  mortgage  for  the  balance,  the  vendees  executed 
their  note  but  never  paid  the  money;  the  broker  was  not  en- 
titled to  commissions.  McPhail  v.  Buell,  87  Cal.  115,  25  P.  266; 
Ormsby  v.  Graham,  123  Iowa,  22,  98  N.  W.  724;  Hartman  v. 
Selling,  192  P.  408,  —  Or.  Sup.  — .  See  also  Sees.  449,  456, 
458. 

Sec.  503a,    Broker  not  entitled  to  commission  for  contract  to 
purchase  differing  as  to  deferred  payments. 

Where  brokers  were  authorized  to  sell  lands  under  an  agree- 
ment which  provided  that  deferred  payments  should  be  secured 
by  a  deed  of  trust  on  the  entire  premises,  they  are  not  entitled  to 
commission  for  procuring  purchasers  ready,  able  and  willing  to 
buy,  where  contract  provided  a  different  method  of  securing  the 
deferred  purchase  price.  Sullivan  v.  Turner,  82  S.  325,  —  Miss. 
Sup.  — . 

Sec.  504.    Commissions  are  usually  payable  upon  completion 
of  the  transaction. 

A  real  estate  broker  is  entitled  to  the  commissions  agreed  on 
for  the  successful  negotiation  of  an  exchange  of  property  placed 
in  his  hands,  if  the  terms  of  the  exchange  are  accepted  by  the 
owner,  as  the  obligation  to  pay  the  commission  then  becomes 
fixed.  Lockwood  v.  Halsey,  41  Kan.  166,  21  P.  98;  Einhorn  v. 
P.  Derby  &  Co.,  132  N.  Y.  Sup.  327;  Clark  v.  Asbury,  134  S. 
W.  286,  —  Tex.  Civ.  Ap.  — ;  Caldwell  v.  Tanehill,  84  S.  E.  6, 
117  Va.  11.  In  the  absence  of  a  provision  to  the  contrary  in  the 
contract  of  employment.  Frye  v.  Schwarz,  87  N".  Y.  App.  Div. 
611.  See  also  Sees.  498,  499a,  499b. 

Sec.  505.    Broker  entitled  to  commissions  although  purchaser 
pays  more  than  he  authorized  broker  to  offer. 

Where  the  principal  tried  to  get  the  broker  to  negotiate  a 
trade  of  his  land  for  a  house,  stating  that  he  was  willing  to 
give  $1,000  boot,  and  would  give  plaintiff  $100  if  the  trade 
was  consummated  and  the  trade  was  made  by  the  principal  con- 
senting to  give  more  boot,  the  broker  was  entitled  to  his  com- 
mission. Carson  v.  Baker,  2  Colo.  App.  248,  29  P.  1134.  In  the 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  465 

absence  of  an  agreement  limiting  to  a  fixed  price  beyond  which 
the  purchaser  had  to  go  to  effect  the  purchase.  Lestrade  v. 
Vanzini,  6  La.  Ann.  399.  See  also  Sec.  24. 

Sec.  506.    Where  purchaser  defaulted  broker  entitled  to  com- 
missions on  actual  payments. 

A  receiver  of  an  insolvent  bank  employed  the  services  of  an 
agent  to  effect  a  sale  of  certain  realty  which  he  held  in  right  of 
the  bank,  agreeing  that  the  agent  should  receive  ten  per  cent, 
commission  as  his  compensation;  there  was  no  agreement  as  to 
when  such  commission  was  to  be  paid,  whether  out  of  the  cash 
payments,  or  on  payment  of  the  entire  purchase  money;  the 
agent  sold  the  property  for  $85.000 ;  the  purchaser  paid  $10,000 
cash,  and  made  default  as  to  the  residue.  Held,  that  the  agent 
was  entitled  to  his  commission  on  so  much  of  the  purchase 
money  as  was  or  could  be  paid,  and  on  that  only.  Peters  v. 
Anderson,  88  Va.  1051.  14  S.  E.  974;  Murray  v.  Richard,  103 
Va.  132,  48  S.  E.  871.  See  also  Sees.  297,  500. 

Sec.  507.    Cases  where  plaintiff  was  held  not  to  be  the  pro- 
curing cause  of  sale,  and  not  entitled  to  commissions. 
HaUyday  v.  Southern  Farm  Agency,  100  Md.  294,  59  A.  646; 
Wood  v.  Burton,  47  N.  Y.  S.  184,  21  Misc.  326 ;  Burd  v.  Webster, 
128  Wis.  118,  107  N.  W.  23;  Goff  v.  Hurst  (Ky.  Ct.  App.  '09), 
122   S.  W.  148;  Floyd  v.  Misner,  166  N.  W.  1046,  —  Iowa 
Sup.  — . 

Sec.  507a.    Broker  who  is  the  procuring  cause  of  sale  entitled 
to  commission. 

That  owner  of  land  negotiated  with  purchaser  of  land  before 
agent  approached  such  purchaser  would  not  bar  the  agent's  right 
to  commission  if  he  was,  in  fact,  the  procuring  cause  of  the  sale. 
Rowland  v.  Progressive  Inv.  Co.,  202  S.  W.  257,  —  Mo.  App.  — . 

The  broker  who  is  the  procuring  cause  of  the  sale,  whether 
he  be  the  first  or  second  to  engage  the  attention  of  the  pur- 
chaser, and  not  the  broker  who  first  spoke  of  the  property,  is 
entitled  to  the  commission.  Bunion  v.  Compredon,  171  P.  142, 
—  N.  M.  Sup.  — . 


466  AMERICAN  LAW  EEAL  ESTATE   AGENCY. 

If  plaintiff  was  employed  to  procure  a  customer,  and  a  sale 
was  made  through  his  efforts,  it  was  immaterial  with  what  pur- 
pose the  purchaser  was  induced  to  go  to  the  office  of  the  seller. 
Hallheimer  v.  Rice,  169  N.  Y.  Sup.  1002.  See  also  Sec.  446. 

Sec.  508.    Where  sale  frustrated  through  failure  to  partition, 
broker  entitled  to  commissions. 

Defendant  authorized  plaintiff,  a  real  estate  broker,  to  sell 
land,  and  through  him  a  contract  of  sale  to  W.  was  made  of  a 
definite  number  of  acres,  eighteen  of  which  were  to  be  made 
up  by  defendant's  having  a  thirty-six-acre  tract,  in  which,  he 
had  an  undivided  half  interest,  partitioned;  the  contract  pro- 
vided that  the  title  was  to  be  passed  on  by  W.  's  attorney ;  the 
defendant  failed  to  have  the  partition  made,  stating  that  a 
division  line  had  been  adopted  by  him  and  his  co-tenant,  but 
there  was  no  evidence  of  this.  Held,  that  W.'s  refusal  to  per- 
form the  contract  on  account  of  the  failure  to  partition  being 
justified,  plaintiff  was  entitled  to  recover  his  commissions  of 
defendant.  Attrition  v.  First  Nat.  Bk.,  38  Tex.  Civ.  App.  614, 
86  S.  W.  646.  See  also  Sec.  555. 

Sec.  509.    Partial    performance    entitles    broker    to    recover 
neither  on  contract  nor  on  quantum  meruit. 

Where  a  petition  by  a  broker  to  recover  commissions  counted 
on  an  express  contract  by  defendant  to  pay  a  certain  price,  if 
plaintiff  obtained  a  purchaser  for  the  entire  tract  of  timber 
land,  etc.,  and  the  evidence  disclosed  only  a  partial  perform- 
ance, plaintiff  was  not  entitled  to  recover  on  a  quantum  meruit. 
Veatah  v.  Norman,  309  Mo.  App.  387,  84  S.  W.  350;  Carpenter 
v.  Atlas  Imp.  Co.,  108  N.  Y.  S.  547,  123  App.  Div.  706 ;  Dillard 
v.  Field,  153  S.  W.  532,  168  Mo.  App.  206;  Howell  v.  Bennett, 
145  S.  W.  535,  103  Ark.  620;  Douglas  v.  Spangenberg,  137  P. 
1103,  23  Cal.  App.  294;  Caldwell  v.  Tannehill,  84  S.  E.  6,  117 
Va.  11;  Bruce  v.  Mesarve,  117  N.  E.  830,  —  Mass.  — ;  Hall  v. 
Schiff,  167  N.  Y.  Sup.  362,  179  App.  Div.  699;  Porter  v.  Carney, 
172  N.  W.  644,  —  Iowa  Sup.  — ;  McLaughlin  &  Co.  v.  Southern 
Hotel  Co.,  177  N.  Y.  Sup.  323;  Oban  v.  Ducharme,  106  A.  777, 
—  Vt.  Sup.  — ;  Cusick  v.  Worthington  Pump  &  Machy.  Cor., 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  467 

173  K  W.  212,  —  Wis.  Sup.  — .     See  also  Sec.  935.     Mechem 
on  Ag.,  Sec.  635. 

Sec.  510.    Agent  in  charge  of  real  estate,  securing  responsible 

tenant,  entitled  to  recover  on  a  quantum  meruit. 
A  complaint  alleged  that  plaintiffs  were  employed  to  take 
charge  of  defendant's  real  estate,  as  agent  to  rent  the  same 
and  collect  the  rents;  that  they  performed  their  part  of  the 
contract  by  procuring  responsible  tenants  for  the  property; 
that  defendant  revoked  their  contract  of  agency,  without  com- 
pensating them  for  their  services.  Held,  that,  treating  the  ac- 
tion as  on  a  quantum  meruit  for  services  on  a  contract  per- 
formed by  plaintiffs,  the  complaint  was  sufficient.  New  Kana- 
wha  Coal  &  Mm.  Co.  v.  Wright,  163  Ind,  529,  72  N.  E.  550; 
LockJiart  v.  Hamlin,  190  N.  Y.  132,  82  N.  E.  1094. 

Sec.  511.    On  principal  selling,  broker  could  recover  for  ser- 
vices on  a  quantum  meruit. 

Where,  after  defendant  had  employed  plaintiff  to  sell  cer- 
tain standing  timber  at  specified  price  and  terms,  he  availed 
himself  of  plaintiff's  services  and  sold  the  timber  to  an  employe 
of  the  person  with  whom  plaintiff  had  been  negotiating  on 
different  terms,  plaintiff  was  entitled,  in  an  action  on  his  con- 
tract, to  join  a  prayer  for  a  recovery  of  the  reasonable  value 
of  the  services,  and  recover  on  a  quantum  meruit.  McDonald 
v.  Cabiness,  100  Tex.  615,  98  S.  W.  943,  affirmed  102  S.  W.  720. 
Compare  Johnson  v.  Va.  &  Car.  Lumber  Co.,  163  F.  249,  89 
C.  C.  A.  632;  Smith  v.  Va.  &  Car.  Lumber  Co.,  163  F.  249,  89 
C.  C.  A.  632;  Hughes  v.  Daniel  65  S.  518,  187  Ala.  41;  Alford 
v.  Creagh,  62  S.  254,  7  Ala.  App.  358. 

Sec.  512.    Principal  selling  for  less  than  agreed  price,  broker 
entitled  to  recover  on  a  quantum  meruit. 

An  agent  under  a  contract  with  his  principal  was  to  receive 
all  in  excess  of  a  stipulated  price  for  which  certain  timber 
sold,  provided  he  obtained  a  purchaser  at  a  price  considerably 
in  excess  of  the  minimum  price  stipulated,  but  the  principal 
sold  the  timber  on  different  terms  than  those  agreed  upon  in 


468  AMEBICAN  LAW  EEAL  ESTATE   AGENCY. 

the  contract.  Held,  that  the  agent  having  procured  the  pur- 
chaser was  entitled  to  recover  on  a  quantum,  meruit,  although 
the  principal  had  changed  the  terms  of  the  sale  as  provided 
for  in  the  contract.  McDonald  v.  Cabiness,  100  Tex.  615,  102 
S.  W.  720;  Stiultz  v.  Zelmar  (Tex.  Civ.  App.  '08),  111  S.  W. 
776.  See  also  Sees.  24,  446. 

Sec.  513.  In  the  absence  of  an  express  contract  broker  pro- 
curing a  purchaser  may  recover  on  a  quantum  meruit. 
A  broker  to  procure  a  purchaser  for  real  estate  is  entitled 
to  such  commissions  as  are  usual  for  procuring  a  purchaser 
for  property  of  similar  character  and  value,  unless  a  different 
compensation  is  agreed  upon.  Walker  v.  Baldwin-,  106  Md.  619, 
68  A.  25 ;  Hollis  v.  Weston,  156  Mass.  357,  31  N.  E.  483 ;  Hart- 
man  v.  Warner,  75  Conn.  197,  52  A.  719;  Lansing  v.  Johnson, 
18  Neb.  174,  24  N.  W.  726 ;  Baer  v.  Koch,  21  N.  Y.  S.  974,  2 
Misc.  334;  Harrel  v.  Zimpleman,  66  Tex.  292,  17  S.  W.  478; 
Phillips  v.  Roberts,  90  111.  492;  Roberts  v.  Markham,  109  P.  127, 
26  Okl.  387;  Taggart  v.  Hunter,  150  P.  738,  78  Or.  139,  judg. 
rev.  on  re.,  152  P.  871,  78  Or.  139;  Thos.  S.  Jones  &  Co.  v. 
Moore,  99  S.  W.  286,  30  Ky.  Law  Eep.  603;  Walker  v.  Baldwin 
&  Frick,  68  A.  25,  106  Md.  615;  Louva  v.  Worden,  152  N".  W. 
639,  30  N".  D.  401;  Mattock  v.  Jarabek,  164  N.  W.  587,  —  Minn. 
Sup.  — .  See  also  Sees.  587,  615.  Applies  also  to  void  parol 
contract.  Robinson  v.  Willard,  16  0.  C.  C.  464. 

Sec.  51 3a.    In  absence  of  fixed  rate,  measure  of  broker's  com- 
pensation the  value  of  the  service  rendered. 

Upon  a  suit  by  a  broker  to  recover  ordinary  commissions  for 
effecting  the  sale  of  a  colliery,  it  appeared  that  commissions 
ranged  from  five  to  twenty-five  per  cent.  Held,  in  the  absence 
of  evidence  of  a  uniform  custom  or  usage,  that  the  measure 
of  plaintiff's  compensation  should  be  the  value  of  the  service 
rendered.  Potts  v.  Aechtertnacht,  93  Pa.  St.  138.  See  also  Sec. 
587. 

Sec.  514.    Demand  by  broker  for  $10,000  to  release  lien  de- 
feated his  right  to  commissions. 

Complainant's  agent  executed  an  agreement  in  her  name,  with- 
out her  authority,  giving  defendant  the  exclusive  right  to  pur- 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  469 

chase  or  sell  a  farm  for  a  period  of  one  year  for  $20,000,  and 
in  case  defendant  did  not  exercise  his  right  to  purchase,  but 
sold  the  property  he  was  to  receive  two  per  cent,  on  the  $20.000, 
and1  all  the  farm  sold  for  above  such  sum  as  compensation  for 
his  services;  defendant  procured  a  prospective  purchaser  to 
whom  he  offered  the  farm  for  $20,000,  but  the  purchaser  de- 
clined to  buy  at  that  price,  and  subsequently  made  a  contract 
with  complainant  to  purchase  the  farm  for  $22,500;  as  soon 
as  defendant  discovered  the  purchaser  was  dealing  direct  with 
the  owner,  defendant  filed  his  contract  for  record,  claiming  an 
option  for  $20,000,  and  refused  to  release  the  same  unless  he 
was  paid  $10,000.  Held,  that  such  act  clouded  the  title  and 
justified  the  purchaser's  refusal  to  complete  the  sale,  depriving 
defendant  of  the  right  to  commissions.  Woolf  v.  Sullivan,  224 
111.  509,  79  N.  E.  646.  See  also  Sec.  290. 

Sec.  514a.  Owner  entitled  to  counterclaim  for  expenses  pf 
suit  to  remove  cloud  on  title  caused  by  broker  recording 
contract  breached  by  his  misrepresentations. 

If  a  broker  suing  for  a  commission  for  negotiating  a  contract 
to  exchange  land,  which  was  repudiated  by  defendant  principal, 
induced  the  defendant  to  execute  contract  through  fraudulent 
misrepresentations,  defendant  is  entitled  to  counterclaim  for  nec- 
essary expenses  in  removing  the  cloud  on  her  title  by  the  broker's 
act  in  recording  the  contract.  Duncan  v.  Turner,  154  S.  W.  816, 
171  Mo.  App.  661. 

Sec.  515.    First  broker  held  to  have  the  right  to  commissions 

by  second's  relinquishment. 

Where  M.,  who  was  to  receive  a  commission  for  a  sale  of  B.'s 
land',  turned  over  the  sale  of  the  land  to  L.,  agreeing  that  L. 
should  have  the  commissions  therefor,  to  which  B.  consented 
before  a  sale  was  made,  L.,  on  selling  the  land,  was  not  entitled 
to  a  commission  as  the  assignee  of  M.,  but  because  he,  with  the 
knowledge  and  consent  of  B.,  sold  the  land  after  M.  had  waived 
his  right  to  do  so.  Munson  v.  Malon,  135  Iowa,  335,  112  N.  W. 
775. 


470  AMERICAN    LAW    REAL    ESTATE    AGENCY. 

Sec.  515a.    Waiver  of  variance  in  contract  by  acquiescence. 

Though  the  taking  of  notes  payable  on  or  before  maturity 
was  a  technical  variation  from  authority  to  sell  on  time  at  a 
specified  rate  of  interest,  the  vendor  waived  his  right  when, 
on  seeking  time  for  delivery  of  possession,  he  wrote  to  his  broker 
that  everything  else  would  be  all  right.  Watkins  v.  Thomas  (Mo. 
App.  '10),'  124  S.  W.  1063. 

The  vendor's  right  to  demand  that  the  broker  put  him  in  di- 
rect communication  with  the  purchaser  may  be  waived.  Henry 
v.  Harker,  122  P.  298,  61  Or.  276,  aff.  judg.  on  re.,  118  P.  205, 
61  Or.  276. 

Broker  entitled  to  commissions,  although  contract  made  on  dif- 
ferent terms,  where  variance  is  waived  by  owner.  Brown  v.  Ma- 
son, 99  P.  867,  155  Cal.  155,  21  L.  E.  A.  (N.  S.)  328. 

Sec.  515b.     Owner  accepting  purchaser  waived  requirement 
from  broker  as  to  financial  ability. 

Broker  not  required  to  prove  that  his  purchasers  were  ready, 
willing  and  able  to  buy,  where  defendants,  on  receiving  notice  of 
the  sales,  wrote  plaintiff  and  the  proposed  purchasers  confirming 
the  same.  E.  R.  &  D.  C.  Kelp  v.  Brazer,  161  S.  W.  899,  —  Tex. 
Civ.  App.  — . 

Sec.  515c.    Broker  must  prove  financial  ability  of  purchaser, 
and  ordinarily  this  is  not  waived  by  owner's  acceptance. 

Broker  must  procure  a  purchaser  able  and  ready  to  comply 
with  the  terms  of  sale,  and  where  no  contract  is  made  there  is  no 
waiver  of  this  condition  though  the  owner  accepts  the  purchaser, 
unless  he  has  notice  that  he  is  unable  or  unwilling  to  comply 
with  the  terms.  Bike  v.  McHugh  &  Groom,  66  S.  452,  188  Ala. 
237. 

Sec.  515d.     Broker,  to  recover  commission,  must  show  that 
variance  in  purchaser's  contract  was  waived  by  owner. 

Where  a  contract  of  sale  consummated  by  a  broker  did  not 
conform  to  the  enlistment  contract,  the  broker  is  not  entitled  to 
recover,  unless  he  can  show  that  the  departure  from  the  enlist- 


COMMISSION    AND    COMPENSATION    OP    AGENTS.  471 

merit  was  waived  by  the  vendor,  his  principal.    Peeples  v.  Grif- 
fith, 214  S.  W.  561,  —  Tex.  Civ.  App.  — 

Sec.  515e.  Where  owner  paid  second  broker  for  furnishing 
purchaser,  first  having  waived  his  rights,  latter  not  en- 
titled to  recover. 

Where  one  realty  broker,  with  whom  land  was  listed,  turned  a 
second  broker  over  to  the  owner,  with  the  statement  that  such 
second  broker  was  his  associate,  and  that  any  arrangement  made 
with  him  would  be  satisfactory,  and  the  terms  of  sale  and  agree- 
ment with  reference  to  commission  are  made  by  the  owner  with 
the  second  broker,  and  the  owner  paid  commission  to  the  second 
broker,  according  to  his  agreement  with  him,  the  first  broker  is 
not  entitled  to  recover  commissions  from  the  owner.  Brannen  v. 
Poole,  218  S.  W.  186,  —  Ark.  Sup.  — . 

Sec.  515f.  Waiver  by  party  to  exchange  that  other  party 
should  assume  mortgage  on  former's  premises. 

A  requirement  of  defendant's  offer  to  exchange  lands  made  to 
brokers  that  the  other  party  should  assume  a  mortgage  was 
waived,  where  the  other  party  only  agreed  to  take  the  property 
subject  to  the  mortgage,  and  defendant  made  no  objection  to  the 
form  of  acceptance,  and  in  depositing  his  deed  in  escrow  did  not 
condition  delivery  on  compliance  with  such  requirement.  Gall- 
way  v.  Galbreaih,  187  P.  73,  —  Cal.  App.  — . 

Sec.  516.    If  authority  to   secure  a  purchaser  is  revocable, 

broker  finding  after  barred  commissions. 
By  the  statement  of  a  real  estate  owner  to  a  broker  that  if 
the  latter  or  any  one  else  could  secure  a  purchaser  for  the  land 
by  a  certain  date,  on  terms  specified,  the  land  might  go,  gives 
the  broker  nothing  more  than  a  revocable  authority  binding  the 
owner  to  pay  commissions  only  in  case  a  purchaser  is  found 
before  revocation,  and  is  not  an  agreement  that  the  agency 
shall  continue  until  the  date  specified.  Milligan  v.  Owen,  123 
Iowa,  285,  98  N.  W.  792 ;  Kane  v.  Dawson,  52  Wash.  411,  100 
P.  837. 


472  AMERICAN    LAW    EEAL    ESTATE    AGENCY. 

Sec.  517.  If  the  customer  reserves  the  right  to  withdraw  from 
the  transaction  if  title  bad,  if  exercised,  bars  commissions. 

If  the  customer  reserves  the  privilege  to  withdraw  from  the 
transaction,  in  case  he  finds,  upon  examination,  that  the  title 
is  bad,  the  broker  is  not  entitled  to  a  commission  upon  the  cus- 
tomer's refusal,  by  the  exercise  of  the  reserved  privilege,  to 
make  the  purchase  for  that  reason.  Condict  v.  Cowdrey,  139 
N.  Y.  S.  273,  34  N.  E.  781;  West  v.  Stoeckel,  6  Ohio  Dec.  (Rep.) 
1082,  10  Am.  L.  Rec.  309 ;  Blankenship  v.  Ryerson,  50  Ala,  426 ; 
Gflchrist  v.  Clarke,  86  Tenn.  583,  8  S.  W.  572;  Carter  v.  Har- 
rell  (Tex.  Civ.  App.  '09),  118  S.  W.  1139. 

Sec.  517a.  On  breach  of  contract  to  exchange  lands,  broker 
can  not  recover  from  wrongdoer  the  commission  agreed 
to  be  paid  by  other  party. 

Where  a  broker  employed  by  defendant  and  a  third  person  to 
exchange  their  respective  lands,  induced  them  to  enter  into  a 
valid  contract  for  an  exchange,  and  defendant  was  financially  able 
to  carry  out  his  contract,  but  without  legal  excuse  refused  to  do 
so,  the  broker  could  not  recover  from  defendant  the  amount  of 
commission  the  third  person  had  agreed  to  pay.  Bird  v.  Rowell, 
167  S.  W.  1172,  180  Mo.  App.  421. 

Sec.  518.  Unless  exclusive  rival  broker  not  entitled  to  com- 
missions on  sale  by  the  other. 

Unless  real  estate  brokers  had  the  exclusive  right  to  make 
a  sale  of  certain  property,  they  were  not  entitled  to  a  commis- 
sion if  the  sale  was  made  by  some  one  else,  even  though  they 
secured  a  purchaser.  Rothenberger  v.  Turner,  30  Ky.  L.  R. 
1018,  99  S.  W.  1150;  Hennings  v.  Persons,  108  Va,  1,  61  S.  B. 
866;  Mueller  v.  Bell  (Tex.  Civ.  App.  '09),  117  S.  W.  993. 

Sec.  519.  Broker  and  sub-agent  stand  in  similar  relations  as 
to  compensation  as  do  principal  and  agent. 

A  real  estate  broker  and  his  sub-agent  stand  relatively  in 
the  same  position,  with  reference  to  the  right  to  compensation, 
as  do  the  principal  and  the  broker.  Leonard  v.  Roberts,  20 
Colo.  88,  36  P.  880;  Olsen  v.  Jordan,  38  Minn.  466,  38  N.  W. 
485;  Warren  Com.  &  Inv.  Co.  v.  Hull,  120  Mo.  App.  432,  96 


COMMISSION   AND   COMPENSATION   OF   AGENTS.  473 

S.  W.  1038 ;  Parker  v.  Merrell,  173  Mass.  391,  53  N.  .E.  913 ; 
Whiting  v.  Saunders,  51  N.  Y.  S.  211,  23  Misc.  332;  Weinstein 
v.  Golding,  40  N.  Y.  S.  680,  17  Misc.  613;  Eastland  v.  Maney, 
36  Tex.  Civ.  App.  147,  81  S.  W.  574 ;  Blake  v.  Austen,  33  Tex. 
Civ.  App.  112,  75  S.  W.  571 ;  J.  B.  Watkin's  Ld.  Mtge.  Co.  v. 
Thetford  (Tex.  C.  A.  '06),  96  S.  W.  72;  Bartbell  v.  Peter,  88 
Wis.  316,  60  N.  W.  429;  Madler  v.  Pozorski,  124  Wis.  477, 
102  N.  W.  892 ;  McCleary  v.  Willis,  35  Wash.  696,  77  P.  1073. 

Sec.  520.    Sub-agent  entitled  to  share  in  commissions  though 
he  violated  instructions. 

The  fact  that  a  sub-agent  in  his  first  negotiations  with  the 
customer  violates  the  instructions  of  the  owner  to  the  agent 
by  asking  more  than  the  price  fixed,  will  not  estop  him  from 
claiming  a  share  of  the  commissions  voluntarily  paid  to  the 
agent  on  the  sale  of  the  land,  as  the  owner  alone  could  com- 
plain upon  that  ground.  Russell  v.  Andrea,  79  Wis.  108,  48 
N.  W.  117. 

Sec.  520a.    Broker  liable  to  sub-agent  though  property  on  sale 
found  not  to  belong  to  vendor. 

A  real  estate  broker  employed  to  sell  land,  who  agrees  to  pay 
another  broker  a  commission,  if  he  procures  a  purchaser  there- 
for, is  liable  for  the  commission  if  a  purchaser  is  procured, 
though  he  afterwards  discovers  that  the  land  is  not  the  prop- 
erty of  the  principal.  Barthel  v.  Peter,  88  Wis.  316,  60  N. 
W.  429.  See  also  Sec.  519. 


CHAPTER  IX. 


SECTION. 

521.  Sub-agent  entitled  to  commission 

for  sale  made  after  revocation 
of  authority. 

522.  Sub-agent    denied    recovery    of 

unlawful  commissions. 

523.  Typical  cases  in  which  the  sub- 

agent    was    held    entitled    to 
recover  share  of  commissions. 
523a.  Contract  between  agent  and  sub- 
agent  need  not  be  in  writing. 

524.  Sub-agent   not    entitled    to    re- 

cover of  his  principal  for  sale 
made  at  reduced  price. 

525.  Sub-agent  entitled   to   commis- 

sions,   though    he    failed    to 
give  the  name  of  purchaser. 

526.  Broker    selling   to    railroad   in- 

stead of  to  syndicate  entitled 
to  commissions. 

527.  Broker  entitled  to  commissions, 

though  sale  other  than  that 
contemplated. 

528.  Broker's    right    to    commissions 

not  affected  by  owner's  sup- 
positions. 

529.  Broker's  erroneous  advice  as  to 

liability  for  sewer  tax  defeated 
right  to  commissions. 

530.  Broker  failing  to  name  purchaser 

in  telegram  to  principal  does 
not  defeat  commissions. 
530a.  Broker  entitled  to  compensation 
though    he    withheld    buyer's 
name  from  principal. 

531.  Where  vendor  sought  to   vary 

terms,  and  purchaser  refused 
to    take,    broker    entitled    to 
commissions. 
474 


SECTION. 

532.  Broker  entitled  to  commissions 

on  bringing  parties  together, 
though  they  contract  on  dif- 
ferent terms. 

532a.  Broker  contracting  for  commis- 
sion on  list  price,  entitled  to 
same  rate  on  reduced  price. 

533.  On  making  a  sale  defect  in  the 

title  does  not  deprive  broker 
of  right  to  commissions. 

534.  Where  customer  exercises  right 

to  withdraw  if  title  defective, 
broker  barred  commissions. 

535.  Where  broker  is  to  have  part  of 

the  profits  on  the  sale,  not 
entitled  where  it  fails  by  de- 
fect in  title. 

536.  Payment     of     commissions     to 

broker  may  depend  on  the 
transfer  of  title. 

536a.  Broker's  compensation  due  on 
breach  by  vendor,  although 
postponed  by  contract  till 
title  passed. 

537.  Broker  not  entitled  to  commis- 

sions where  customer  refused 
to  complete  purchase  on  ac- 
count of  a  supposed  defect  in 
the  title. 

538.  Whether    principal    or    another 

holds  the  title,  broker  on  pro- 
ducing buyer  entitled  to  com- 
missions. 

539.  Where  sale  defeated  by  want  of 

title,  which  he  knows,  broker 
barred  commissions. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  475 

SECTION.  SECTION. 

540.  Ignorance  of  contract  by  holder  543.  Unavailing  efforts  to  perform 
of  record  title  did  not  defeat  do  not  entitle  broker  to  corn- 
broker's  right  to  commissions.  missions. 

641.    Where    broker    produced    pur-  544.    To  entitle  broker  to  commissions 

chaser  and   sale   failed   by   a  for  sale  his  negotiations  must 

dispute    over    taxes,     broker  be  uninterrupted, 

barred  commissions.  545.    Undisclosed  agreement  to  divide 

542.    Alter      memorandum     contract  commissions    with    purchaser 

signed,  and  purchaser  refused  doea   not   bar   broker's   right 

to    pay    water    tax,    broker  thereto, 
entitled  to  commissions. 

Sec.  521.    Sub-agent  entitled  to  commission   for  sale  made 

after  revocation  of  authority. 

Where  the  owner  of  real  property  employed  an  agent  to  find 
a  purchaser  therefor,  and  the  latter,  within  the  scope  of  his 
authority,  but  without  the  owner's  knowledge,  employed  a  bro- 
ker for  the  same  purpose,  and  the  owner  revoked  the  authority 
given  to  the  agent,  and  the  broker  afterward,  without  notice 
of  the  revocation,  found  a  purchaser,  it  was  held  that  the  bro- 
ker could  recover  commissions  from  the  owner.  Lamson  v. 
Sims,  48  N.  Y.  Super.  Ct.  281.  Compare  Mechem  on  Ag.  Sec. 
197. 

Sec.  522.  Sub-agent  denied  recovery  of  unlawful  commissions. 
A  broker  procured  a  customer  for  another  broker,  with  the 
understanding  that  the  latter  should  charge  for  procuring  a 
loan  of  money  at  a  rate  prohibited  by  statute,  and  that  such 
commissions  should  be  divided.  Held,  that  suit  would  not  lie 
in  behalf  of  the  former  broker  for  his  share  of  such  commis- 
sions against  the  latter  broker  to  whom  they  had  been  paid 
by  the  customer.  Gregory  v.  Wilson,  36  N.  J.  L.  315.  Compare 
Sec.  497.  See  also  Sec.  559. 

Sec.  523.    Typical  cases  in  which  the  sub-agent  was  held  en- 
titled to  recover  share  of  commissions. 

The  owner  of  certain  real  estate  of  one  hundred  acres  in 
extent  placed  the  same  in  the  hands  of  defendants  with  au- 
thority to  sell  it  for  him  at  the  rate  of  $4,000  per  acre;  that 
thereafter  defendants  employed  plaintiffs  to  find  a  purchaser 
at  the  rate  of  $4,250  per  acre ;  that  plaintiffs  found  parties  who 


476  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

were  ready  and  willing  to  purchase  upon  the  terms  mentioned; 
that  thereafter  an  agreement  was  executed  whereby  defendants 
promised  to  pay  plaintiffs  a  commission  of  $5,000;  that  there- 
after the  sale  in  question  was  consummated  and  the  defend- 
ants received  and  accepted  from  the  purchasers  their  share  of 
the  purchase  money  from  such  sale,  amounting  in  money,  notes 
and  other  property  to  more  than  $10,000.  Held,  that  plaintiff 
was  entitled  to  recover.  Olsen  v.  Jordan,  38  Minn.  466,  38  N. 
W.  485;  Warren  Com.  &  Inv.  Co.  v.  Hull,  120  Mo.  App.  432, 
96  S.  W.  1038 ;  Murphy  v.  Hiltlridle,  132  Iowa,  114,  109  N.  W. 
471;  Prov.  Trust  Co.  v.  Darraugh,  168  Ind.  29,  78  N.  E.  1030; 
Taylor  v.  Barbour,  90  Miss.  888,  44  S.  988. 

Sec.  523a.    Contract  between  agent  and  sub-agent  need  not 
be  in  writing. 

Cobbey's  Ann.  Stat.  1911,  Sec.  10856,  requiring  contracts  of 
employment  of  brokers  to  sell  land  to  be  in  writing;  held,  not  to 
apply  to  contract  between  agent  and  sub-agent.  Reasoner  v. 
Yates,  134  N.  W.  651,  90  Neb.  757. 

Sec.  524.    Sub-agent  not  entitled  to  recover  of  his  principal 
for  sale  made  at  reduced  price. 

A  broker  for  the  sale  of  lands  who  agreed  to  pay  other  bro- 
kers a  certain  sum  out  of  his  own  commissions,  if  they  sold 
at  a  certain  price,  but  who  had  no  interest  in  the  land,  as  such 
brokers  knew,  is  not  liable  to  them  for  commissions  on  a  sale  at 
a  less  price.  Whitcomb  v.  Dickinson,  169  Mass.  16,  47  N.  E.  426. 
See  also  Sec.  422. 

Sec.  525.    Sub-agent  entitled  to  commissions,  though  he  failed 
to  give  the  name  of  purchaser. 

Where,  in  an  action  on  a  contract  for  division  of  broker's 
commissions,  there  was  evidence  that  defendant  sold  the  prop- 
erty to  the  purchaser  secured  by  plaintiff,  in  accordance  with 
the  contract  between  them  for  a  division  of  commissions,  and 
that,  at  the  time  of  the  sale,  defendant  knew  that  plaintiff  had 
procured  a  purchaser,  it  was  immaterial  that  plaintiff  failed 
to  impart  to  defendant,  prior  to  the  sale,  the  name  of  the  per- 
son with  whom  plaintiff  had  been  negotiating,  and  to  whom 
the  property  was  subsequently  sold.  McCleary  v.  Willis,  35 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  477 

Wash.  676,  77  P.  1073;  Feist  v.  Jerolomen  (N.  J.  Err  &  App. 
'10),  75  A.  751.     See  also  Sees.  487,  530. 

Sec.  526.    Broker  selling  to  railroad  instead  of  to  syndicate 
entitled  to  commissions. 

A  broker  who  is  promised  a  commission  for  selling  a  street 
car  line  to  a  certain  syndicate  is  entitled  to  a  commission  on 
effecting  such  sale  to  a  railroad  company  organized  by  the  syn- 
dicate, and  the  fact  that  such  company  was  not  duly  incorporated 
is  no  defense.  Smith  v.  Mayfield,  60  111.  App.  266.  Compare 
Graves  v.  Horton,  38  Minn.  66,  35  N.  W.  568.  Compare  Sec. 
577. 

Sec.  527.    Broker  entitled  to  commissions  though  sale  other 
than  that  contemplated. 

To  secover  on  a  contract  providing  for  payment  for  services 
for  promoting  the  sale  of  a  street  railway,  on  the  conclusion  of 
"any  trade"  with  the  prospective  vendee,  it  is  immaterial  that 
the  trade  finally  consummated  was  not  the  negotiation  pending 
at  the  time  the  contract  was  made.  Alexander  v.  Wakefield  (Tex. 
Civ.  App.  '02),  69  S.  W.  77.  See  Sec.  532.  Compare  Sec.  577. 

Sec.  528.    Broker's    right   to    commissions    not    affected   by 
owners'  suppositions. 

The  fact  that  defendant  sold  to  a  person  who  he  thought 
was  purchasing  for  himself  and  not  for  the  church,  does  not 
affect  plaintiff's  right  to  his  commissions,  where,  after  learn- 
ing that  the  purchase  was  for  the  church,  defendant  conveyed 
it,  when  he  might  have  avoided  the  contract.  McEnight  v. 
Thaijer,  21  N.  Y.  S.  440;  Bach  v.  Emerich,  35  N.  Y.  Super. 
Ct.  548.  See  also  Sec.  24. 

Sec.  529.    Broker's  erroneous  advice  as  to  liability  for  sewer 
tax  defeated  right  to  commissions. 

A  broker  was  employed  to  procure  a  purchaser  of  real  estate ; 
he  procured  a  purchaser  who  contracted  for  the  purchase  there- 
of; the  owner  executed  a  warranty  deed  conveying  the  prem- 
ises to  the  purchaser;  the  deed  was  not  delivered  and  the  pur- 
chase price  paid  over,  because  of  the  refusal  of  the  owner  to 
pay  the  cost  of  sewer  tax  bills  which  would  be  subsequently 


478  AMERICAN  LAW   EEAL   ESTATE  AGENCY. 

issued,  the  construction  of  the  sewer  being  in  progress  during 
the  transactions;  the  attorney  of  the  broker  erroneously  advised 
that  the  owner  was  liable  for  the  tax  bills.  Held,  that  the  bro- 
ker was  not  entitled  to  commissions.  Mercantile  Trust  Go.  v. 
Niggeman,  119  Mo.  App.  56,  96  S.  W.  293. 

Sec.  530.    Broker  failing  to  name  purchaser  in  telegram  to 
principal  does  not  defeat  commissions. 

Where  a  broker  employed  to  the  effect  a  sale  has  found  a  pur- 
chaser willing  to  buy  upon  the  terms  named,  and  of  sufficient 
responsibility,  he  is  entitled  to  the  commissions,  although  in  the 
telegram  announcing  the  sale  he  did  not  name  the  purchaser. 
Duclos  v.  Cunningham,  102  1ST.  Y.  678,  6  K  E.  790.  Compare 
Sees.  241,  525. 

Sec.  530a.    Broker  entitled  to  compensation,  though  he  did 
not  disclose  to  principal  buyer's  name. 

A  realty  broker  who  is  the  procuring  cause  of  his  principal's 
sale  of  realty  is  entitled  to  the  agreed  compensation,  though  he 
did  not  disclose  the  name  of  the  prospective  purchaser  to  his 
principal,  if  the  principal  was  not  prejudiced  by  such  non-dis- 
closure. Byerts  v.  Schreidi,  180  P.  284,  --KM.  Sup.  — . 

Sec.  531.    Where  vendor  sought  to  vary  terms,  and  purchaser 
refused  to  take,  broker  entitled  to  commissions. 

Evidence  in  an  action  for  broker's  commissions  held  sufficient 
to  show  that  he  procured  a  purchaser  on  the  terms  named  by 
defendant,  and  that  the  purchaser  refused  to  enter  into  a  con- 
tract because  defendant  sought  to  vary  the  terms.  Milne  v. 
Ingersoll  Segeant  Drill  Co.,  104  N.  Y.  S.  1053,  120  App.  Div. 
465 ;  Millan  v.  Porter,  31  Mo.  App.  563 ;  Buckingham  v.  Harris, 
10  Colo.  455,  15  Pac.  817 ;  Smith  v.  Fairchild,  1  Colo.  510,  4  P. 
757 ;  Finley  v.  Dyer,  79  Mo.  App.  604 ;  McQuillen  v.  Carpenter, 
72  N.  Y.  App.  Div.  595,  76  S.  556 ;  Beele  v.  Ranger,  35  N.  Y. 
Super.  Ct.  452;  Gorman  v.  Scholle.  13  Daly,  516;  Michaelis  v. 
'Euffmann,  76  N.  Y.  S.  973,  37  Misc.  830;  Halprin  v.  Schachne, 
57  N.  Y.  S.  735,  27  Misc.  195;  Hattenback  v.  Gwndersheimer, 
13  N.  Y.  S.  814. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  479 

Sec.  532.    Broker  entitled  to  commissions  on  bringing  parties 

together,  though  they  contract  on  different  terms. 
A  land  owner  can  not  avail  himself  of  the  services  of  an 
agent  who  procured  a  purchaser,  to  effect  a  sale  himself  to  such 
purchaser,  and  thereby  deprive  the  agent  of  his  commissions, 
nor  can  he  merely  to  save  the  commissions  agreed  to  be  paid 
to  the  agent,  effect  such  sale  at  a  small  reduction  from  the 
price  at  which  the  agent  was  authorized  to  find  a  purchaser, 
or  make  immaterial  changes  in  the  terms  of  the  sale.  Crook 
v.  Forst,  116  Ala.  395,  22  S.  540;  Knowles  v.  Harvey,  10  Colo. 
App.  9,  52  P.  46;  Bryan  v.  Alert.  3  App.  Gas.  (D.  C.)  180; 
Henry  v.  Stewart,  185  111.  448,  57  N.  E.  190;  Sm/der  v.  Fearer, 
87  111.  App.  275;  Lipsley  v.  Holridge,  71  HI.  App.  652;  Adams 
v.  Decker,  34  HI.  App.  17;  Lawrence  v.  Atwood,  1  111.  App. 
217 ;  McJFarland  v.  Lillard,  2  Ind.  App.  160,  28  N.  E.  229 ;  Welch 
v.  Young  (Iowa  Sup.  '99),  79  N.  W.  59;  Marlott  v.  Elliott,  69 
Kan.  477,  77  P.  104;  Coleman  v.  Meade,  13  Bush.  (Ky.)  358; 
Woods  v.  Stephens,  46  Mo.  555 ;  Henderson  v.  Mace,  64  Mo.  App. 
393;  O'Toole  v.  Tucker,  40  N.  Y.  S.  695,  17  Misc.  554;  Jones  v. 
Henry,  36  N".  Y.  S.  483,  15  Misc.  151;  Keys  v.  Johnson,  68  Pa. 
St.  42;  Huntsman  v.  Arendt,  16  S.  D.  465,  93  N".  W.  653; 
Evans  v.  Gay,  38  Tex.  Civ.  App.  442,  74  S.  W.  575;  Rieger  v. 
Bigger,  29  Mo.  App.  421;  Corbal  v.  Beard,  92  Iowa,  360,  60 
N.  W.  636;  Lestrade  v.  Perrara,  6  La.  Ann.  398;  Futrell  v. 
Reeves,  176  S.  W.  1151,  165  Ky.  282 ;  Friedenwald  v.  Welch,  140 
N.  W.  564,  174  Mich.  399 ;  Shober  v.  Blackford,  127  P.  329,  46 
Mont.  194;  Lord  v.  U.  S.  Trans.  Co.,  128  N.  Y.  Sup.  451,  143 
App.  Div.  437;  Northern  Im.  So.  v.  Alger,  147  N.  W.  100,  27 
N.  D.  467;  Merritt  v.  Am.  Catering  Co.,  128  P.  1074,  71  Wash. 
425;  Gensett  v.  Robinson,  165  1ST.  Y.  Sup.  464;  Goodwin  v.  Gun- 
ter,  195  S.  W.  848,  rev.  judg.,  142  S.  W.  664;  Ford  v.  Cole,  195 
S.  W.  661,  —  Tex.  Civ.  App.  — ;  Hoddle  v.  Malone  E.  E.  Co., 
196  S.  W.  347,  —  Tex.  Civ.  App.  — ;  Geo.  R.  Reed  &  Co.  v. 
Sturges,  163  N.  Y.  Sup.  559,  176,  —  App.  Div.  657;  Hanscom 
v.  Blanchard,  105  A.  291,  —  Me.  Sup.  — ;  Colvin  v.  Post  Mtge. 
&  Loan  Co.,  122  N.  E.  454,  --  N.  Y.  Ct.  App.  — ,  rev.  judg., 
159  N.  Y.  Sup.  361,  mot.  to  am.  remit,  den.,  123  N".  E.  860;  Red 
River  Valley  Loan  Co.  v.  Hutchins,  170  N.  W.  347,  —  N.  D. 


480  AMERICAN   LAW   HEAL   ESTATE   AGENCY. 

Sup.  — ;  Alcers  v.  Moore,  209  S.  W.  241,  —  Tex.  Civ.  App.  — ; 
Cehn  v.  Reich,  175  N.  Y.  Sup.  660;  Ansory  v.  MacAlpine,  175 
K  Y.  Sup.  551 ;  Well  v.  Harding,  211  S.  W.  927,  aff.  judg.,  159 
S.  W.  1129,  --  Tex.  Civ.  App.  — ;  Jenkins  v.  Kay,  224  S.  W. 
1028,  —  Mo.  App.  — ;  Weller  v.  Phillip  Gross  Realty  Co.,  180 
1ST.  W.  927,  —  Wis.  Sup.  — ;  Williams  v.  Fraker,  129  N.  E.  413, 
—  Ind.  App.  — .  See  Sees  527,  68. 

Sec.  532a.     Broker  contracting  for  commission  on  list  price 
entitled  to  same  rate  on  greatly  reduced  price. 

Where  broker  was  to  receive  a  commission  of  2%%  on  a  sale 
of  property  for  $250,000,  he  was  entitled,  when  through  his  ef- 
forts the  property  was  sold  for  $210,000,  to  2%%  commission  on 
the  latter  sum,  in  the  absence  of  a  subsequent  agreement  to  re- 
ceive less.  Pryor  v.  Scott,  200  S.  W.  900,  —  Tex.  Civ.  App.  — . 

Sec.  533.    On  making  a  sale  defect  in  the  title  does  not  de- 
prive the  broker  of  right  to  commissions. 

A  broker  employed  to  effect  a  sale  or  lease  of  property,  or 
employed  to  effect  a  loan  on  the  security  of  real  estate,  who 
acts  in  good  faith,  is  entitled,  to  the  commission,  although  the 
transaction  fails  of  consummation  because  of  a  real  or  alleged 
defect  in  the  principal's  title,  if  the  broker  had  no  knowledge 
of  the  defect  in  the  title  at  the  time  of  finding  the  customer. 
Clark  v.  H.  G.  Thompson  Co..  75  Conn.  161,  52  A.  720 ;  Phelps 
v.  Preusch,  83  Gal.  626,  23  P.  1111;  Middleton  v.  Findle,  25 
Cal.  76;  Martin  v.  Ede,  103  Cal.  157,  37  P.  199;  Smith  v. 
Schiele,  93  Cal.  144,  28  P.  857 ;  Dotson  v.  Mittikin,  27  App.  Gas. 
(D.  C.)  500;  Attix  v.  Phelan,  5  Iowa,  336;  Davis  v.  Lawrence, 
52  Kan.  383,  34  P.  1.051;  Remington  v.  Sellers,  8  Kan.  App. 
806,  57  P.  551 ;  Gornhart  v.  Reutschler,  72  111.  535 ;  Fitzpatrick 
v.  Gilson,  176  Mass.  477,  57  N.  E.  1000;  Toomls  v.  Alexander, 
101  Mass.  255 ;  Peet  v.  Sherwood,  43  Minn.  447,  45  N.  W.  859 ; 
Gauthier  v.  West,  45  Minn.  192,  47  N.  W.  656;  Roberts  v. 
Kinnons,  65  Miss.  332,  3  S.  736;  Fullerton  v.  Carpenter,  97 
Mo.  App.  197,  71  S.  W.  98 ;  Bruce  v.  Wolfe,  102  Mo.  App.  384, 
76  S.  W.  723;  Christensen  v.  Woolley,  41  Mo.  App.  53;  Ger- 
hart  v.  Peck,  42  Mo.  App.  644 ;  Holly  v.  Gosling,  3  E.  D.  Smith 
(N.  Y.),  262;  Egan  v.  Kiefordorf,  38  N.  Y.  S.  81,  16  Misc.  385; 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  481 

Find-  v.  Riner,  81  N".  Y.  S.  625,  40  Misc.  218;  Doty  v.  Miller, 
43  Barb.  (N.  Y.)  529;  CusacJc  v.  Aikman,  87  N.  Y.  S.  940,  93 
App.  Div.  579;  Strout  v.  Kenney,  107  N.  Y.  S.  92;  Cox  v. 
Hawke,  93  N.  Y.  S.  1117 ;  Morgan  v.  C divert,  110  N.  Y.  S.  855, 
126  App.  Div.  327 ;  Middleton  v.  Thompson,  163  Pa.  St.  112,  29 
A.  796;  McLaughlan  v.  Wheeler,  1  S.  D.  497,  47  N.  W.  816; 
Sweeney  v.  Ten  Mile  Oil  &  Gas  Co.,  130  Pa.  St.  193,  18  A.  612; 
Cheatha'm  v.  Yarbrough,  90  Term.  77,  15  S.  W.  1076;  Parker 
v.  Walker,  86  Tenn.  566,  8  S.  W.  391 ;  Berg  v.  San  Antonio  St. 
R.  Co.,  17  Tex.  Civ.  App.  291,  42  S.  W.  647,  43  S.  W.  929  (T. 
C.  A.  '98),  47  S.  W.  921;  Hamberger  v.  Thomas  (Tex.  Civ.  App. 
'09),  118  S.  W.  770;  Conklin  v.  Krakauer,  70  Tex.  735,  US. 
W.  117;  Green  v.  Lucas,  33  L.  T.  E.  N.  S.  (Eng.)  584;  Godley 
v.  Haley,  27  Ohio  Cir.  Ct.  606;  Bankers'  Loan  &  Inv.  Co.  v. 
Spindle,  108  Va.  426,  625  E.  266;  Pinkerton  v.  Hudson,  113  S. 
W.  35  (Ark.  Sup.  '08);  John  Reis  &  Co.  v.  Zimmern,  120  N.  E. 
692,  224  1ST.  Y.  351,  rev.  judg.,  156  N.  Y.  Sup.  327;  Crum  v. 
Blade  &  Bennett,  214  S.  W.  441 ;  Williams  v.  Atkinson,  214  S.  W. 
504,  —  Tex.  Civ.  App.  — ;  Brownell  v.  Hanson,  186  P.  873,  — 
Wash.  — ;  B.  J.  &  B.  F.  Camp  Lumber  Co.  v.  Tedder,  82  S. 
865,  —  Pla.  Sup.  — ;  Gilliam  v.  Jones,  225  S.  W.  417,  —  Tex. 
Civ.  App.  — ;  Morrow  v.  Gladhill,  111  A.  712,  —  B.  I.  Sup.  — . 

Sec.  534.    Where  customer  exercises  right  to  withdraw  if  title 
defective,  broker  barred  commissions. 

It  has  been  held  that  if  a  customer  reserves  the  privilege  to 
withdraw  from  the  transaction  in  case  he  finds  the  title  de- 
fective upon  examination,  the  broker  is  not  entitled'  to  com- 
missions upon  the  refusal  for  that  reason,  by  the  customer,  ex- 
ercising the  reserved  right,  to  complete  the  purchase.  Conflict 
v.  Cowdrey,  139  N.  Y.  273,  34  N.  E.  781 ;  Crockett  v.  Grayson, 
98  Va.  354,  36  S.  E.  477 ;  Blankenship  v.  Ryerson,  50  Ala.  426 ; 
Gilchrist  v.  Clarke,  86  Tenn.  583,  8  S.  "W.  572;  Johnson  v.  Sut- 
ton  (Miss.  Sup.  '09),  49  S.  970;  Arthur  v.  Porter  (Tex.  Civ. 
App.  '09),  116  S.  W.  127.  See  also  Sec.  225. 

Sec.  535.    Where  broker  is  to  have  part  of  the  profits  on  the 

sale,  not  entitled  where  it  fails  by  defect  in  title. 
Where  a  broker  agrees  to  sell  land  upon  condition  that  the 
owner  shall  first  make  $500  out  of  the  sale,  the  broker  to  have 


482  AMEEICAN   LAW  EEAL  ESTATE   AGENCY. 

the  rest  of  the  profit  as  his  commissions,  he  is  not  entitled  to 
the  commission  for  merely  finding  a  .purchaser,  upon  a  sale  to 
such  purchaser  falling  through  on  account  of  a  defect  in  the 
title.  Seattle  Land  Co.  v.  Day,  2  Wash.  27  P.  74.  Compare 
Druker  v.  Gunn,  41  Kan.  496,  21  P.  637.  See  also  Sec.  630. 

Sec.  536.  Payment  of  commissions  to  broker  may  depend  on 
the  transfer  of  title. 

Where  a  broker's  commissions  were  not  to  be  paid  for  until 
and  unless  title  passed  and  the  purchaser  failed  to  complete 
his  purchase,  no  right  to  commissions  accrued.  Fittichauer  v. 
Van  Wyck,  92  N.  Y.  S.  241;  Cooper  v.  O'Neill,  103  N.  Y.  S. 
122,  53  Misc.  319;  Bruce  v.  Drake,  70  S.  273,  195  Ala.  236; 
Cine  v.  Kell,  124  P.  548,  18  Cal.  App.  675;  John  Reis  Co.  v. 
Zimmerli,  156  N".  Y.  Sup.  327,  170  App.  Div.  502;  Costa  v. 
Schetz,  175  ET.  Y.  Sup.  476.  See  also  Sees.  449,  458. 

Sec.  536a.  Broker's  compensation  due  on  breach  by  vendor 
although  postponed  by  contract  till  title  passed. 

Where  a  real  estate  broker  agreed  that  compensation  should  be 
paid  when  title  passed,  that  stipulation  merely  fixed  the  time  for 
the  payment  of  commission,  and  the  broker's  right  to  the  same 
could  not  be  barred  by  the  vendor's  breach  of  contract.  Rosen- 
thai  v.  Schwartz,  101  K  B.  1070,  214  Mass.  371 ;  Swee  v.  Neu- 
mann,  123  K  Y.  Sup.  776,  67  Misc.  Eep.  605  (K  Y.  City  Ct.) 

Broker  having  produced  a  purchaser  able  to  buy  and  contract 
having  been  signed;  held,  entitled  to  commissions,  in  spite  of 
agreement  to  wait  for  them  until  title  passed.  Salmon  v.  Mayer, 
164  N.  Y.  Sup.  766. 

Sec.  537.  Broker  not  entitled  to  commissions  where  customer 
refused  to  complete  purchase  on  account  of  a  supposed 
defect  in  the  title. 

A  land  agent  is  not  entitled  to  commissions  or  compensation 
for  procuring  a  purchaser  of  a  plantation,  where  it  is  shown  that 
the  intended  purchaser  declined  to  complete  the  contract,  with- 
out fault  or  neglect  on  the  part  of  the  principal,  on  account  of 
a  supposed  defect  in  the  title.  Blankenship  v.  Ryerson,  50  Ala. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  483 

426;  Oilchrist  v.  Clark,  86  Term.  563,  8  S.  W.  572;  Simrall  v. 
Arthur,  13  Ky.  L.  R.  (abst.)  682;  Pfang  v.  Humberg,  30  Ohio 
Cir.  Ct.  R.  711;  Willson  v.  Crawford,  130  S.  W.  227,  61  Tex. 
Civ.  Ap.  580;  Leonard  v.  Vaughan  &  Co.,  85  S.  E.  171,  117  Va. 
514,  L.  R.  A.  1915  E,  714;  Butte  Land  &  Inv.  Co.  v.  Williams, 
173  P.  580,  —  Mont.  Sup.  — .  Compare  Sees.  460,  547a.  See 
also  Sec.  541. 

Sec.  538.    Whether  principal  or  another  holds  the  title,  broker 
on  producing  buyer  entitled  to  commissions. 

Where  one  employs  a  real  estate  agent  to  find  a  purchaser  for 
property  which  he  represents  as  his  own,  and  on  the  agent  pro- 
ducing a  purchaser  ready,  able  and  willing  to  pay  the  price,  re- 
fuses to  complete  the  sale,  he  is  liable  to  the  agent  in  an  action 
for  the  usual  commissions,  whether  the  property  belongs  to  him 
or  to  another.  Stanton  v.  Barnes,  72  Kan.  541,  84  P.  116;  Cook 
v.  Plait,  126  Mo.  App.  553,  104  S.  W.  1131;  Heimberger  v. 
Rudd,  138  N.  W.  374,  30  S.  D.  289;  Willner  v.  McDonnell,  185 
N".  Y.  Sup.  837. 

Sec.  539.    Where  sale  defeated  by  want  of  title,  which  he 
knew,  broker  barred  commissions. 

Where  the  broker  knew  that  the  principal  held  only  a  mort- 
gagee's interest  in  the  property,  and  might  not  be  able  to  obtain 
title  by  foreclosure,  the  broker  could  not  recover  commissions  for 
negotiations  which  were  not  completed  because  the  principal  did 
not  obtain  title  through  such  proceedings.  Corbin  v.  Mechanics' 
&  Traders'  Bank,  106  N.  Y.  S.  573,  121  App.  Div.  744;  Mont- 
gomery v.  Amster  (Tex.  C.  A.  '09),  122  S.  W.  307;  Cain  v.  Min- 
norette,  162  N.  W.  287,  —  Mich.  Sup.  — ;  Gettlum  v.  Lewis,  172 
K  W.  387,  —  Mich.  Sup.  — ;  Brownell  v.  Hanson,  186  P.  873, 
—  Wash.  Sup.  — . 

Sec.  540.    Ignorance  of  contract  by  holder  of  record  title  did 
not  defeat  broker's  right  to  commissions. 

Where  defendant,  having  an  option  on  land,  put  it  in  the 
hands  of  plaintiffs,  real  estate  agents,  to  trade,  and  they  traded 


484  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

it  with  one  who,  as  well  as  defendant,  to  the  knowledge  of 
both,  had  agreed  to  pay  the  commissions,  their  right  to  recover 
a  commission  of  defendant  is  not  affected  by  the  fact  that  the 
owners  of  the  record  title  of  defendant's  land,  with  whom  plain- 
tiff claimed  no  contractual  relations,  did  not  know  of  the  agree- 
ment as  to  the  commission.  Cook  v.  Plait,  126  Mo.  App.  553, 
104  S.  W.  1131.  See  also  Sec.  454. 

Sec.  541.    Where  broker  produced  a  purchaser  and  a  sale 
failed  by  a  dispute  over  taxes,  broker  barred  commissions. 

A  broker  is  not  entitled  to  commissions  for  procuring  a  pur- 
chaser of  land,  where  the  principal  and  the  proposed  purchaser 
failed  to  consummate  the  sale  because  of  a  dispute  over  taxes. 
Guthman  v.  Meyer,  63  N.  Y.  S.  971,  31  Misc.  810.  See  also 
Sees.  465,  33,  537. 

Sec.  542.    After  memorandum  contract  signed,  and  purchaser 
refused  to  pay  water  tax,  broker  entitled  to  commissions. 

Defendant  employed  plaintiff  to  procure  a  purchaser  for 
certain  property  at  a  specified  price;  plaintiff  secured  a  pur- 
chaser at  the  price;  defendant  received  a  payment  down  and 
signed  a  memorandum,  expressing:  the  conditions  of  the  agree- 
ment as  to  the  terms  and  time  of  signing  a  formal  contract, 
but  at  the  agreed  time  she  refused  to  sign  the  contract  because 
the  purchaser  would  not  pay  the  water  tax,  which  had  then 
become  a  lien  on  the  property.  Held,  that  plaintiff  was  entitled 
to  his  commissions.  Brand  v.  Nagle,  107  N.  Y.  S.  156,  122  App. 
Div.  490.  See  previous  section. 

Sec.  543.    Unavailing   efforts   to   perform   do   not   entitle   a 
broker  to  commissions. 

A  broker  is  entitled  to  no  compensation  unless  a  bargain  be 
effected,  and  even  in  that  event  has  no  claim  for  reimbursement 
of  his  expenses.  Didem  v.  Duralde,  2  Rob.  (La.)  163;  Sher- 
lurne  Land  Co.  v.  Ell,  92  Minn.  114.  99  N.  W.  419;  West  v. 
Demone,  128  Mich.  1.1.  87  N.  W.  95 ;  Shapiro  v.  Nadler,  99  N. 
Y.  S.  879,  51  Misc.  13 ;  Schane  v.  Starch,  107  N.  Y.  S.  26,  56 
Misc.  484;  Ball  v.  Dolan  (S.  D.  Sup.  '08),  114  N.  W.  998; 
Bailey  v.  Carlton,  43  Colo.  4,  95  P.  542 ;  English  v.  W m.  George 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  485 

Realty  Co.  (Tex.  Civ.  App.  '09),  117  S.  W.  996;  Stevens  v. 
Backer,  141  S.  W.  1143,  162  Mo.  App.  284;  Norcott  v.  Franken- 
lerger,  191  111.  App.  480 ;  Ragmer  v.  HoUs,  146  P.  906,  26  Cal. 
App.  298 ;  Harris  v.  Esperanza  Mining  Co.,  109  A.  826,  —  N.  J. 
Eq.  — .  See  also  Sees.  290,  309. 

Sec.  544.    To  entitle  a  broker  to  commissions  for  a  sale  his 
negotiations  must  be  uninterrupted. 

To  entitle  a  broker  to  commissions,  where  the  contract  con- 
cluded differs  from  that  which  the  broker  was  authorized  to 
negotiate,  the  negotiations  commenced  by  the  broker  must  have 
continued1  uninterruptedly,  and  he  must  have  been  actively  in- 
strumental throughout  in  causing  the  parties  to  consummate  the 
transaction,  and  the  sale  made  was  satisfactory  to  the  owners. 
Woods  v.  Stephens,  46  Mo.  555;  Gold  v.  Sorrell,  26  N.  Y.  S. 
124. 

A  broker  employed  to  procure  a  purchaser  of  realty  for  a 
fixed  per  cent,  of  the  price,  not  specified,  opened  negotiations 
with  a  third  person  and  introduced  him  to  the  owner.  The 
third  person  never  made  any  offer  to  the  broker,  and  the  owner 
refused  to  give  the  third  person  any  price  or  terms,  because 
others  were  then  negotiating  for  the  property.  The  broker  made 
no  further  efforts  to  bring  the  parties  together.  Many  months 
later  the  owner  contracted  a  sale  to  the  third  person.  Held, 
that  the  broker  was  not  entitled  to  commissions.  Wheeler  v. 
Beers  (Colo.  Sup.  '09),  101  P.  758. 

Sec.  545.    Undisclosed  agreement  to  divide  commissions  with 
purchaser,  does  not  bar  broker's  right  thereto. 

An  agreement  by  real  estate  agents  to  divide  their  commis- 
sions with  the  purchaser  of  land,  made  without  the  knowledge 
of  their  principal,  does  not  affect  their  right  to  recover  the 
commissions  which  said  principal  agreed  to  pay.  Scot t  v.  Lloyd, 
19  Colo.  401,  35  P.  733;  Lemon  v.  Lloyd,  46  Mo.  Apr>.  452; 
Lawler  v.  Armstrong  (Wash.  Sup.  '09),  102  P.  775;  Chase  v. 
Veal,  83  Tex.  333 ;  18  S.  W.  597 ;  Forst  v.  Farmer,  46  N.  Y.  S. 
903,  21  Misc.  64. 


CHAPTER  X. 


SECTION. 

546.  Broker    not    entitled    to    com- 

missions until  he  has  performed 
his  undertaking. 

546a.  In  some  States  reasonable  com- 
pensation may  be  recovered 
for  partial  performance  of  an 
entire  contract. 

547.  Broker    not    entitled    to    com- 

missions for  procuring  contract 
subject  to  approval,  which  is 
withheld. 

547a.  Broker  entitled  to  commission 
on  alternative  contract,  which 
did  not  bind  the  buyer  even 
although  he  approved  the 
title. 

548.  Broker  obtaining  purchaser  for 

vested  remainder  on  different 
terms  barred  commissions. 

549.  Broker    does    not    earn    com- 

missions if  contract  to  be  void 
if  first  payment  fails. 
549a.  Broker     acquiring    interest     in 
purchase  and  contract  beyond 
authority,  the  same  is  void. 

550.  Variance  as  to  name  of  ranch 

sold  did  not  deprive  broker  of 
right  to  recover  commissions. 
486 


SECTION. 

551.  Broker    not    entitled    to    com- 

missions for  contract  too  vague 
for  enforcement,  on  failure  of 
customer  to  take. 

552.  Withdrawal  of  land  from  sale 

entitled  broker,  under  contract, 
to  commissions. 

553.  Withdrawal  and  sale  by  owner 

in  good  faith  to  customer  bars 
broker's  commissions. 

554.  Principal  paying  commissions  to 

broker  before  purchaser  with- 
drawing cannot  recover  same. 
554a.  Owner  allowed  recovery  of  with- 
held money  from  brokers 
barred  recovery  of  commissions 
paid. 

555.  Broker  entitled  to  commissions 

where  sale  failed  because  rights 
of  two  heirs  were  not  acquired. 

556.  Where  purchaser  is  in  default, 

broker  not  entitled  to  com- 
missions. 

557.  When   commissions   are   earned 

by  broker. 

558.  When  commissions  are  not  earned 

by  broker. 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  487 

Sec.  546.  Broker  not  entitled  to  commissions  until  he  has 
performed  his  undertaking. 

A  broker  is  not  entitled  to  compensation  until  he  has  per- 
formed his  undertaking.  Ivy  Coal  Co.  v.  Long,  139  Ala.  535, 
36  So.  722 ;  Manly  v.  Turner,  13  Colo.  App.  358,  57  P.  862 ;  Cos- 
ton  v.  Quiniby,  178  Mass.  153,  59  1ST.  E.  653,  52  L.  E.  A.  785; 
West  v.  StoecTcel,  6  Ohio  Dec.  (Rep.)  1082,  10  Am.  L.  R.  309; 
Ball  v.  Dolan  (S.  D.  Sup.  '08),  114  N.  W.  998;  Wiggins  v.  Wil- 
son, 55  Fla.  346,  45  S.  1011;  Spilo  v.  Baumann-McWhirter 
Chemical  Co.,  157  N.  Y.  Sup.  521 ;  Schano  v.  Starch,  137  N.  Y. 
Sup.  26,  56  Misc.  Rep.  484;  Bledsoe  v.  Lombard,  194  S.  W.  518, 
—  Mo.  App.  — ;  Thompson  v.  Ryan,  174  1ST.  W.  15,  mod.  on  re., 
176  N".  W.  275,  —  Iowa  Sup.  — ;  Dunning  v.  Powell,  104  S.  E. 
73,  —  K  C.  Sup.  — . 

If  an  entirety  broker  must  show  full  performance,  as  a  con- 
dition precedent.  Mechem  on  Ag.  Sec.  635. 

Sec.  546a.  In  some  States  recovery  may  be  had  for  partial 
performance  of  an  entire  contract  in  an  action  for  rea- 
sonable compensation  therefor. 

In  some  States  the  doctrine  of  quantum  meruit  prevails  to 
recover  on  failure  to  perform  an  entire  contract  the  reasonable 
value  of  the  services  rendered — Michigan,  Iowa,  Nebraska, 
Kansas,  Texas,  Indiana,  Missouri  and  Mississippi.  Mechem  on 
Agency  Sec.  637. 

Sec.  547.    Broker  not  entitled  to  commissions  for  procuring 

contract  subject  to  approval  which  is  withheld. 
A  broker  is  not  entitled  to  a  commission,  where  he  procures  a 
contract  between  the  parties  subject  to  approval,  and  that  ap- 
proval has  been  withheld.  Halprine  v.  Schachne,  54  N.  Y.  S. 
1103,  25  Misc.  797 ;  Hammond  v.  Crawford,  66  Fed.  425,  14  C. 
C.  A.  109;  Hamlin  v.  Schulte,  31  Minn.  486;  Gough  v.  Coffin 
(Tex.  Civ.  App.  '09),  120  S.  W.  210;  Oliver  v.  Sattler,  233  HI. 


488  AMERICAN  LAW   REAL  ESTATE   AGENCY. 

536,  84  N.  E.  652;  OUn  v.  Duclwrme,  106  A.  727,  —  Vt.  Sup. 
— .     See  references  under  Sec.  307. 

Sec.  547a.  Broker  entitled  to  commission  on  alternative  con- 
tract, which  did  not  bind  the  buyer,  even  although  he 
approved  the  title. 

That  the  agreement  with  the  broker  was  in  the  alternative, 
and  did  not  bind  the  buyer  to  buy  even  if  he  approved  the 
title,  would  not  defeat  the  broker's  right  to  compensation,  since 
it  was  the  fact  that  the  title  was  not  clear  to  the  purchaser 
that  defeated  the  sale.  Hamberger  v.  Thomas  (Tex.  Sup.  '10), 
126  S.  W.  561.  Compare  Sec.  537. 

Sec.  548.  Broker  obtaining  purchaser  for  vested  remainder 
on  different  terms  barred  commissions. 

Where  plaintiff  Avas  employed  to  sell  a  vested  remainder 
owned  by  defendant  for  $55,000  net  to  the  defendant,  the  pur- 
chaser to  receive  $175,000  if  the  life  tenant  should  live  less 
than  ten  years,  and  $195,000  if  she  should  live  more  than  eleven 
years,  and  the  purchaser  to  be  required  to  reassign  to  the  de- 
fendant $10,000  if  the  life  tenant  should  die  within  eleven 
years,  $20,000,  if  within  ten  years,  $25,000,  if  within  nine  years, 
and  $28,000,  if  within  eight  years,  and  the  purchaser  accepted 
the  proposition  to  buy,  and  instead  of  $195,000,  with  certain 
contingent  sums  to  be  reassigned  on  the  death  of  the  life  tenant 
within  ten  years,  not  corresponding  to  those  provided  in  the 
terms  of  the  contract  with  plaintiff,  he  was  not  entitled  to  re- 
cover the  agreed  compensation  for  his  services.  Header  v. 
Brown,  102  N.  Y.  S.  32,  116  App.  Div.  734.  See  references 
under  Sec.  307. 

Sec.  549.    Broker  does  not  earn  commissions  if  contract  to 

be  void  if  first  payment  fails. 

A  broker  employed  to  effect  a  sale  does  not  earn  his  com- 
missions by  procuring  one  who  enters  into  a  contract  with  the 
principal  which  provides  that  the  contract  shall  be  void  if 
the  first  of  several  payments  of  the  price  is  not  paid  within 
the  stipulated  time.  Ramsey  v.  West,  31  Mo.  App.  676;  Jones 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  489 

v.  Eilenfelt,  28  Wash.  687,  69  P.  368;  Edwards  v.  Baker,  180  P. 
33,  —  Cal.  App.  — .    See  references  under  Sec.  307. 

Sec.  549a.    Broker  acquiring  interest  in  purchase  and  con- 
tract beyond  authority,  the  same  is  void. 

Where  brokers  in  executing  a  contract  for  the  sale  of  land  did 
not  follow  their  instructions  contained  in  the  option  contract  be- 
tween themselves  and  the  owner,  and  also  contracted  with  the 
purchaser  for  an  interest  in  addition  to  their  commissions,  with- 
out the  knowledge  of  the  principal,  the  contract  was  void.  Rob- 
ertson v.  Allen,  184  P.  372,  107  C.  C.  A.  254. 

Sec.  550.     Variance  as  to  name  of  ranch  sold  did  not  de- 
prive broker  of  right  to  recover  commissions. 

Where  the  plaintiff,  in  an  action  by  a  broker  to  recover  com- 
missions, set  out  in  haec  verba  the  written  contract,  which  spoke 
of  the  land  as  the  "Abbey  Kanch,"  the  fact  that  the  plaintiff 
showed  where  the  land  was  situate  did  not  create  a  variance  be- 
tween the  contract  set  out  and  the  one  pleaded  in  its  legal  ef- 
fect. Hill  v.  McCoy,  1  Cal.  App.  159,  81  P.  1015.  Compare 
Sec.  476. 


Sec.  551.    Broker  not  entitled  to  commissions  for  contract  too 
vague  for  enforcement  on  failure  of  customer  to  take. 

A  real  estate  broker  employed  to  sell  property  procured  from  a 
prospective  purchaser  the  following  signed  memorandum :  "I  au- 
thorize Mr.  M.  to  offer  $220,000  for  Mr.  K/s  house,  corner  of 
Sixty-fourth  and  Fifth  Avenue,  July  27,  1894,  signed,  J.  T. 
Martin."  Held,  that  it  was  at  most  a  provisional  proposition, 
leaving  unexpressed  essential  details,  and  was  to  vague  and 
uncertain  to  entitle  a  real  estate  broker  procuring  it  to  his  com- 
missions from  the  vendor,  where  the  proposed  purchaser  re- 
fused to  complete  the  sale.  Montgomery  v.  Knickerbacher,  50 
N.  Y.  S.  128,  27  App.  Div.  117.  See  also  Sec.  556. 


490  AMEBICAN  LAW  HEAL   ESTATE   AOBNOY. 

Sec.  552.    Withdrawal   of   land   from   sale   entitled   broker, 
under  contract,  to  compensation. 

By  the  terms  of  the  contract  of  employment  between  the 
owners  of  land  and  a  broker,  commissions  became  due  upon 
withdrawal  of  the  property  from  sale  within  a  certain  time. 
Held,  that  the  notice  recited  that  it  was1  given  under  the  con- 
tract by  the  owner  to  the  broker  not  to  sell  said  land,  that 
it  had  been  withdrawn  from  the  market  within  that  time, 
while  the  owner  was  repudiating  a  sale  by  the  broker,  was 
a  withdrawal  of  the  premises  from  sale  by  entitling  the  broker  to 
his  commissions,  not  as  damages  for  a  breach  of  the  contract  but 
as  a  debt.  Maze  v.  Gordon,  96  Cal.  61,  30  P.  962;  Gamble  v. 
Cleveland  Cliffs  Iron  Co.,  158  Fed.  49,  89  C.  C.  A.  379.  Com- 
pare Sees.  132,  585.  See  also  Sec.  557. 

Sec.  553.    Withdrawal  and  sale  by  owner  in  good  faith  to  cus- 
tomer bars  broker's  commissions. 

A  real  estate  broker  is  not  entitled  to  commissions  on  a  sale 
of  property  by  the  owner,  after  he  has  in  good  faith  with- 
drawn it  from  the  hands  of  the  broker,  at  a  time  when  no 
negotiations  are  pending,  though  the  sale  is  made  to  one  to 
whom  the  broker  made  an  effort  to  sell.  Stedman  v.  Richard- 
son, 100  Ky.  79,  18  Ky.  L.  K.  567,  37  S.  W.  259. 

Sec.  554.    Principal  paying  commissions  to  broker  before  pur- 
chaser withdrawing  can  not  recover  same. 

Where  a  principal  pays  a  broker  his  commission  before  the 
purchaser  withdraws  from  the  transaction,  the  broker  being 
entitled  thereto  will  retain  the  same.  Moore  v.  Irvin  (Ark.  Sup. 
'09),  116  S.  W.  662;  Conklin  v.  KraJcauer,  70  Tex.  735,  11  S.  W. 
117;  Emerson  v.  Coddington,  55  N.  Y.  Super.  Ct.  336.  Except 
when  the  broker  has  acted  in  bad  faith.  Lockwood  v.  Halsey,  41 
Kan.  166,  21  P.  98. 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  491 

Sec.  554a.    Owner  allowed  recovery  of  withheld  money  from 
brokers  barred  recovery  of  commissions  paid. 

Where  an  owner  is  permitted  to  recover  from  her  brokers  the 
amount  they  realized  from  an  undisclosed  offer  above  the  amount 
of  contract  price,  she  can  not  also  recover  the  commissions  paid. 
Baldwin  v.  Lewis  H.  May  Co.,  181  N.  Y.  Sup.  121. 

Sec.  555.    Broker  entitled  to  commissions  where  sale  failed 
because  rights  of  two  heirs  were  not  acquired. 

Where  a  sale  of  land  negotiated  by  plaintiff  for  defendant 
failed  because  the  record  did  not  show  that  the a  defendant  had 
acquired  the  alleged  outstanding  interests  of  two  heirs  in  the 
land,  plaintiff's  right  to  recover  commissions  was  not  affected 
by  the  fact  that  at  the  time  of  the  purchaser's  refusal  to  accept 
title  there  was  a  will  in  existence  under  which  defendant  ac- 
quired full  title  to  the  property,  and  of  which  will  none  of 
the  parties  had  knowledge.  Weaver  v.  Richards,  144  Mich.  395, 
108  N.  W.  382,  6  L.  R,  A.  N.S.  855.  See  Sec.  508. 

Sec.  556.    Where  purchaser  is  in  default,  broker  not  entitled 
to  commissions. 

A  contract  for  the  purchase  of  real  estate  provided  that  the 
same  should  be  void,  at  the  will  of  the  vendor,  if  default  should 
be  made  by  the  vendee  in  completing  the  purchase  by  making 
the  future  cash  payments  and  executing  a  mortgage  for  the 
balance  of  the  purchase  price,  time  being  of  the  essence  of  the 
contract,  $500  cash  paid  upon  the  execution  to  be  forfeited  by 
the  vendee;  a  commission  contract  executed  at  the  same  time, 
provided  that  the  vendor  would  pay  the  broker  a  certain  sum 
if  the  contract  of  purchase  should  be  performed  by  making  the 
payments  and  executing  the  mortgage  as  provided.  Held,  that 
the  vendee  having  failed  to  make  the  deferred  cash  payments 
and  to  execute  the  mortgage,  the  vendor  having  been  ready, 
willing  and  able  to  perform  the  contract  until  such  de- 
fault, could  take  advantage  thereof,  cancel  the  contract,  and 
remove  the  cloud  from  the  record  by  appropriate  legal  proceed- 
ings; under  such  circumstances  the  commission  was  not  earned. 


492  AMERICAN   LAW   EEAL  ESTATE   AGENCY. 

Van  Norman  v.  Fitchett,  100  Minn.  145,  110  N".  W  851 ;  Jones 
v.  Buck,  120  N.  W.  112,  judg.  aff.  on  re.,  126  N.  W.  452,  147 
Iowa,  494;  Smith  v.  Post,  139  P.  283,  167  Cal.  796;  Philips  v. 
Brown,  120  P.  454,  21  Idaho,  62;  Bailey  v.  Moorhead,  99  S.  W. 
39,  122  Mo.  App.  268 ;  Camp  v.  Dryer,  103  N.  Y.  Sup.  962,  119 
App.  Div.  134;  Avola  v.  Oppenheimer,  153  N.  Y.  Sup.  421; 
Crook  v.  Trentman,  150  P.  1088,  —  Okl.  Sup.  — ;  Cunningham 
v.  Friendly,  139  P.  928,  70  Or.  222,  re.  den.,  140  P.  989,  70  Or. 
222;  Griffith  v.  Bradford,  138  S.  W.  1072,  —  Tex.  Civ.  App.  — ; 
Oswald  Realty  Co.  v.  Broussard,  159  S.  W.  153,  —  Tex.  Civ.  App. 
-;  Ennis  &  Dole  v.  Cater,  174  S.  W.  947,  —  Tex.  Civ.  App.  — ; 
Howell  v.  Bennett,  145  S.  W.  535,  103  Ark.  629 ;  Nutting  &  Co. 
v.  Kennedy,  85  S.  E.  767,  16  Ga.  App.  569 ;  Mason  v.  Miller,  179 
111.  App.  347;  Biggs  v.  Turnbull,  66  A.  13,  105  Md.  135,  8  L. 
E.  A.  (N.  S.)  824,  11  Ann.  Gas.  783;  Levy  v.  Sonnelorn,  138  K 
Y.  Sup.  285,  78  Misc.  Eep.  50 ;  Scott  v.  Merrill's  Est.,  146  P.  99, 
74  Or.  568;  Kollman  v.  Brooks,  155  S.  W.  1007,  —  Tex.  Civ. 
App.  — ;  Yaughan  v.  Pleasanton,  71  S.  E.  520,  112  Va.  508; 
Saunders  v.  Hackley  &  Hume  Co.,  208  S.  W.  670,  —  Mo.  Sup. 
— ;  Hawkins  v.  Green,  104  S.  E.  279,  —  W.  Va.  Sup.  — .  See 
also  Sees.  179,  551,  363a. 

Sec.  557.    When  commissions  are  earned  by  broker. 

Where  an  agent,  given  authority  to  sell  land,  exercises  his 
discretion  as  to  price,  examines  the  title,  and  fixes  the  price 
and  terms,  he  may  employ  a  real  estate  broker  to  find  a  pur- 
chaser, and  a  sale  by  him  will  be  enforced,  if  he  was  required 
to  obtain  his  commission  in  addition  to  the  price  agreed  on,  al- 
though the  agent  may  have  been  requested  by  his  principal  not 
to  employ  a  sub-agent.  Renwick  v.  Bancroft,  56  Iowa,  527,  9 
N.  W.  367. 

One  for  whom  a  broker  assumes  to  act,  without  authority, 
may,  by  accepting  the  benefits  of  the  broker's  services,  ratify 
the  act,  and  so  make  himself  liable  for  compensation,  provided 
the  principal  does  so  with  knowledge  that  the  broker  assumed 
to  act  for  him  as  such.  Merrill  v.  Latham,  8  Colo.  263,  45  P. 
524;  Dayton  v.  Am.  Steel  Barge  Co.,  73  N.  Y.  S.  316,  36  Misc. 
223;  McKvnne  v.  Hope,  118  Ga.  462,  45  S.  E.  413;  Downing 
v.  Buck,  135  Mich.  636,  98  N.  W.  388 ;  Hunt  v.  Jones,  105  Mo. 
App.  106,  79  S.  W.  486 ;  Charles  v.  Cook,  84  N.  Y.  S.  867,  88 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  493 

App.  Div.  81;  Lyle  v.  Bennett,  70  N.  Y.  S.  283,  34  Misc.  476; 
Markham  v.  Washburn,  18  N.  Y.  S.  355;  McCorrnack  v.  Mc- 
Caffery,  74  N.  Y.  S.  836,  36  Misc.  775;  Twelfth  Street  Market  v. 
Jackson,  102  Pa.  St.  269;  Graves  v.  Bains,  78  Tex.  92,  14  S.  W. 
256.  Compare  Sec.  587. 

A  departure  by  a  real  estate  agent  from  the  terms  of  his 
authority  is  cured  by  the  principal's  subsequent  ratification,, 
and  the  compensation  fixed  by  the  original  contract  of  employ- 
ment controls.  Qelatt  v.  Ridge,  117  Mo.  553,  23  S.  W.  882. 
A  broker  employed  to  sell  at  a  certain  commission  may  employ 
a  sub-agent  for  a  share  of  the  commission,  and  recover  from 
his  principal  the  commission  agreed  to  be  paid.  Carter  v.  Web- 
ster, 79  111.  435 ;  Boyd  v.  Watson,  101  Iowa,  214,  70  N.  W.  120 ; 
Henning  v.  Burch,  90  Minn.  43,  95  N.  W.  578 ;  Corning  v.  Col- 
vert,  2  Hilt.  (N.  Y.)  56. 

A  real  estate  broker  who  undertakes  to  furnish  a  purchaser 
is  bound  to  act  in  good  faith,  and  when  one  is  presented,  the 
employer  is  bound  to  accept  him  or  to  pay  the  commission, 
provided  the  customer  is  able,  ready  and  willing  to  make  the 
purchase  on  the  terms  stipulated.  Coleman  v.  Meade,  13  Bush. 
(Ky.)  358;  Barber  v.  Heade,  30  Ohio  Cir.  Ct.  R.  127;  Stewart 
v.  Fowler,  53  Kan.  537,  36  P.  1002 ;  Bach  v.  Emerich,  35  N.  Y. 
Super.  Ct.  548;  Fraser  v.  Wychoff,  63  N.  Y.  445;  Dreyer  v. 
Ranch,  42  How.  Pr.  (N.  Y.)  22,  3  Daly,  434;  Martin  v.  Billings, 

2  City  Ct.  R,  (N.  Y.)  85;  Pratt  v.  Patterson,  112  Pa.  St.  475, 

3  A.  858. 

In  an  action  for  a  commission  for  selling  property  where  it 
appeared  that  defendant  gave  plaintiff  a  written  option  to  pur- 
chase land,  it  is  competent  to  show  a  parol  agreement  by  which 
the  plaintiff  was  to  find  a  purchaser  and  to  receive  as  com- 
missions all  realized  on  the  sale  above  a  specified  amount,  and 
that  such  option  contract  was  executed  for  the  convenience  of 
plaintiff,  and  the  broker  was  held  entitled  to  recover  his  com- 
missions. Ricmer  v.  Rice,  88  Wis.  16,  59  S.  W.  450. 

An  agreement  by  real  estate  agents  to  divide  their  commis- 
sions with  the  purchaser  of  land,  made  without  the  knowledge 
of  their  principal,  does  not  affect  their  right  to  recover  the 
commissions  which  such  principal  agreed  to  pay.  Scott  v.  Lloyd, 
19  Colo.  401,  35  P.  733;  Lemon  v.  Lloyd,  46  Mo.  App.  452; 


494  AMERICAN  LAW   HEAL  ESTATE   AGENCY. 

Chase  v.  Veal,  83  Tex.  333,  18  S.  W.  597;  Forst  v.  Farmer, 
46  N.  Y.  S.  903,  21  Misc.  64. 

A  broker  may  be  entitled  to  compensation  other  than  a  com- 
mission; e.  g.,  for  finding  a  purchaser,  to  the  reasonable;  Haw- 
kins v.  Chandler,  8  Houst.  (Del.)  434,  32  A.  464;  Beister  v. 
Evans,  59  111.  App.  181;  McMurtry  v.  Madison,  18  Neb.  291, 
25  N".  W.  85;  Donald  v.  Lawson,  87  1ST.  Y.  S.  485;  Alexander 
v.  Walcefield  (Tex.  Civ.  App.  '02),  69  S.  W.  77;  Hodges  v. 
Bailey,  143  S.  W.  92,  102  Ark.  200;  or  agreed  value  of  the  ser- 
vices rendered.  Delaplaine  v.  Turnley,  44  Wis.  31. 

A  broker  may  be  entitled  to  a  commission  on  a  sale  effected 
by  the  principal,  without  the  broker's  co-operation,  if  the  con- 
tract so  provides.  Eeniwell  v.  Skelly,  130  Cal.  555,  62  P. 
1067;  Haskins  v.  Fogg,  60  N.  H.  402.  See  also  Sec.  552. 

If  a  broker  merely  brings  together  two  parties  who  de- 
sire to  exchange  or  sell  their  land,  and  his  employment  then 
ends,  and  the  parties  themselves  settle  the  terms  of  the  trans- 
action, he  is  a  mere  middleman  and  may  recover  a  commission 
from  each  party,  if  each  has  agreed  to  pay  him.  Clark  v.  Allen, 
125  Cal.  276,  57  P.  985;  Manders  v.  Croft,  3  Colo.  App.  236, 
32  P.  836;  Cox  v.  Haren,  127  Tnd.  325,  26  N.  E.  822;  Mutter 
v.  Kutzleb,  7  Bush.  (Ky.)  253;  Rupp  v.  Sampson.  16  Gray 
(Mass.),  398;  Montross  v.  Eddy,  94  Mich.  100,  53  N.  W.  916; 
Ranney  v.  Donavan,  78  Mich.,  318,  44  N.  W.  276;  Ch&ds  v. 
Ptomey,  17  Mont.  502,  43  P.  714;  Knauss  v.  Gottfried-Krueger 
Brewing  Co.,  142  N.  Y.  70,  36  N.  E.  867;  Norton  v.  Genesee 
Nat.  Sav.,  etc.,  Ass'n,  68  N.  Y.  S.  32,  57  App.  Div.  520;  Siegel 
v.  Gould,  1  Lans.  (N.  Y.)  177;  Bonwell  v.  Auld,  29  N.  Y.  S. 
15,  9  Misc.  65;  Balheimer  v.  Richardt,  55  How.  Pr.  414;  Havi- 
land  v.  Price,  26  N.  Y.  S.  757,  6  Misc.  372 ;  Collins  v.  Fowler,  8 
Mo.  App.  588.  See  also  Sec.  475. 

Where  a  contract  is  signed  by  the  buyer  and  seller  which 
contains  stipulations  by  each  in  favor  of  the  other  of  nearly 
equal  value,  the  broker  who  brought  them  together  is  the  proper 
custodian  thereof,  in  the  absence  of  other  arrangements,  and 
a  delivery  to  the  broker  by  each,  after  signing,  amounts  to  a 
delivery  to  the  other,  and  the  final  delivery  by  the  seller  to 
the  broker  completes  the  execution  as  a  binding  agreement, 
so  as  to  entitle  the  broker  to  his  commissions  for  finding  a  pur- 
chaser. Green  v.  Hollingshead.  40  111.  App.  195. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  495 

Where  the  minds  of  the  vendor  and  the  purchaser  have  met 
on  a  contract  to  sell  real  estate,  the  broker  who  procured  the 
execution  of  such  contract  is  entitled  to  recover  his  promised 
commission,  notwithstanding  any  vagueness  in  the  terms  of  the 
agreement.  Folinsbee  v.  Sawyer,  36  N.  Y.  S.  405,  15  Misc.  293, 
51  N.  E.  994,  157  N.  Y.  196.  If  the  right  to  a  commission  is 
dependent  upon  the  payment  of  the  price  by  the  purchaser, 
the  broker  must  show  either  payment,  Burnett  v.  Edling,  19  Tex. 
Civ.  App.  711,  48  S.  W.  775,  or  a  tender  thereof,  or  he  is  not 
entitled  to  a  commission.  Fiske  v.  Soule,  87  Cal.  313,  25  P.  430. 

Under  a  contract  providing  for  the  payment  of  commissions 
"at  the  date  of  the  payment  of  the  purchase  price,"  or  "in 
installments  acording  to  payments  by  said  purchaser,"  the  bro- 
ker was  entitled  to  his  commissions  on  each  partial  payment, 
payment  of  commissions  not  being  dependent  on  the  payment 
of  the  entire  purchase  price,  although  the  principal,  a  part 
owner,  received  no  part  of  the  payments.  Frank  v.  Bonnevie, 
20  Colo.  App.  164,  77  P.  363. 

A  proviso  in  a  broker's  contract  that  the  commission  shall 
be  payable  out  of  the  first  cash  payment,  is  not  a  condition 
precedent  to  the  broker's  right  to  recover  commissions,  and 
does  not  mean  that  unless  there  is  a  cash  payment,  there  is 
to  be  no  commission  paid.  Finch  v.  Guardian  Trust  Co.,  92 
Mo.  App.  263. 

The  mere  fact  that  the  interest  and  insurance  clauses  in  the 
contract  of  sale  had  not  been  definitely  arranged  before  the 
day  on  which  the  contract  was  presented  for  signature,  no 
objection  being  raised  by  the  purchaser,  will  not  deprive  the 
broker  of  his  commissions.  Beebe  v.  Banger,  35  N.  Y.  Super. 
Ct.  452.  And  the  broker  does  not  lose  his  right  to  a  commis- 
sion merely  because  the  principal  and  the  customer  can  not, 
in  an  agreement  for  an  exchange,  be  brought  to  terms  on  a 
particular  point,  if  they  come  to  a  general  agreement.  Wychoff 
v.  Bliss,  12  Daly  (N.  Y.),  324.  Compare  Sec.  33. 

The  right  of  a  broker  who  has  obtained  a  purchaser  is  not 
affected  by  the  fact  that  the  vendor  did  not  understand  the 
contract  as  written,  where  the  broker  himself  was  not  guilty 
of  fraud  or  deception.  Bach  v.  Erne-rich,  35  N.  Y.  Super.  Ct. 
548;  McKnight  v.  Thayer,  21  N.  Y.  S.  440. 


496  AMERICAN  LAW  EEAL  ESTATE   AGENCY. 

The  fact  that  the  contract  bound  the  purchaser  only  to  forfeit 
a  cash  payment  of  $500  is  immaterial,  where  it  appears  that 
a  tender  of  the  whole  price  was  made  by  the  purchaser  to  the 
vendor,  who  refused  to  convey  the  property,  and  the  broker 
was  entitled  to  recover  commissions.  Fiske  v.  Soule,  87  Cal. 
313,  25  P.  430. 

There  are  cases  holding,  that  if  the  negotiations  between  the 
principal  and  the  customer  continue  uninterruptedly  after  the 
expiration  of  the  time  allowed  the  broker,  and  a  sale  is  made 
of  which  the  broker  is  the  procuring  cause,  he  is  entitled  to 
a  commission,  although  the  broker  did  not  bring  the  parties 
to  terms  within  the  time  limited  in  the  contract  of  employ- 
ment. Griswold  v.  Pierce,  86  111.  App.  406;  Jaeger  v.  Glover, 
89  Minn.  490,  95  N.  W.  311 ;  Goffe  v.  Gibson,  18  Mo.  App.  1 ; 
Michaelis  v.  Gaeren,  41  N.  Y.  S.  563,  9  App.  Div.  495,  75  N. 
T.  St.  952;  Vanderveer  v.  Suydam,  31  N.  Y.  S.  392,  83  Hun, 
116;  Shipman  v.  Wilkeson,  112  N.  Y.  S.  895;  Moore  v.  Holman 
R.  E.  Co.,  196  S.  W.  479,  —  Ark.  Sup.  — . 

To  be  entitled  to  a  commission  where  no  sale  is  actually  made, 
a  broker  employed  to  find  a  purchaser  must  either  produce 
to  the  owner  a  customer  who  is  able,  ready  and  willing  to  buy 
on  the  terms  prescribed  by  the  owner,  or  else  take  from  the  cus- 
tomer a  binding  contract  of  purchase.  Bingham  v.  Davidson,  141 
Ala.  551,  37  S.  738;  Sharpley  v.  Moody,  44  S.  650,  152  Ala.  549; 
Sayre  v.  Wilson,  86  Ala.  151,  5  S.  157 ;  Crook  v.  Forst,  116  Ala. 
395,  22  S.  540;  Boy  son  v.  Frink,  80  Ark.  254,  96  S.  W.  1056; 
Gunn  v.  State  Bank,  99  Cal.  349,  33  P.  1105;  Hill  v.  McCoy, 
1  Cal.  App.  159,  81  P.  1015 ;  Carlin  v.  Lifuer,  2  Cal.  App.  590, 
84  P.  292;  Vandercook  v.  Wilmans  (Cal.  App.  '06),  87  P. 
1116;  Shanks  v.  Michael,  4  Cal.  App.  553,  88  P.  596;  Coward 
v.  Clinton,  122  Cal.  451,  55  P.  147 ;  Quitzon  v.  Perrin,  120  Cal. 
255,  52  P.  632;  Zeimer  v.  Antisell,  75  Cal.  509,  17  P.  642; 
Hasten  v.  Griffing,  33  Cal.  Ill ;  Wagner  v.  Morris,  39  Colo.  106, 
88  P.  973;  Silberberg  v.  Chipman,  42  Colo.  20,  93  P.  1130; 
King  Powder  Co.  v.  Dillon,  42  Colo.  316,  96  P.  439;  Ross  v. 
Smiley,  18  Cola.  App.  204,  70  P.  766;  Buckingham  v.  Harris, 
10  Colo.  455,  15  P.  817;  Carter  v.  Owens  (Fla.  Sup.  '09),  50 
S.  641;  Furlow  \.  Benoit  (La.  Sup.  '09),  50  S.  785;  Anderson 
v.  Olsen  (Minn.  Bup.  '10),  124  N.  W.  3;  Dotson  v.  Milliken,  27 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  497 

App.  Gas.  (D.  C.)  500,  209  U.  S.  237;  Jones  v.  Holladay,  2  App. 
Gas.  (D.  C.)  279;  Wiggins  v.  Wilson,  55  Fla.  346,  45  S.  1011; 
Indian  Trust  Co.  v.  Sandlin,  125  Ga.  222,  54  S.  E.  65;  Phinzy 
v.  Bush,  129  Ga.  479,  59  S.  E.  259 ;  Wood  v.  Broderson,  12  Idaho, 
190,  85  P.  490;  Mercy  v.  Whallon,  115  111.  App.  435;  Fox  v. 
Ryan,  240  111.  391,  88  N.  E.  974;  Scott  v.  Stewart,  115  HI.  App. 
535 ;  Lemon  v.  Carter,  116  111.  App.  421 ;  Whalen  v.  Gore,  116 
111.  App.  504;  Newman  v.  Lumley,  125  111.  App.  382;  Oldham 
v.  Howser,  125  111.  App.  543 ;  Waller  v.  Chambers,  128  111.  App. 
624 ;  Packer  v.  Sheppard,  127  111.  App.  598 ;  Nolan  v.  East,  132 
111.  App.  634 ;  Long  v.  Hand,  57  111.  App.  134 ;  Faber  v.  Vaugh- 
an,  108  111.  App.  553;  Kilpatrick  v.  McLaughlin,  108  111.  App. 
463;  Jeffries  v.  Loving,  106  111.  App.  380;  Phillips  v.  Dow- 
fcower,  103  111.  App.  50;  Monroe  v.  Swow,  131  111.  126,  23  N.  E. 
401 ;  Ward  v.  Lawrence,  70  111.  295 ;  Fox  v.  Starr,  106  111.  App. 
273;  Hanrahan  v.  Ulrich,  107  111.  App.  626;  Schmidt  v.  Keeler, 
63  111.  App.  487 ;  Ispherding  v.  WoZ/,  36  Ind.  App.  250,  75  N. 
E.  598;  Prov.  Trust  Co.  v.  Darraugh,  168  Ind.  29,  78  N.  E. 
1030;  Barnett  v.  Gluting,  3  Ind.  App.  415,  29  N.  E.  154,  927; 
Lockwood  v.  Rose,  125  Ind.  588,  25  N.  E.  710;  McFarland  v. 
Lillard,  2  Ind.  App.  160,  28  N.  E.  229;  Flynn  v.  Jordal,  124 
Iowa,  457,  100  N.  W.  326 ;  Grieb  v.  Koefler,  127  Iowa,  314,  106 
N.  W.  113;  Sherburne  Land  Co.  v.  Sexton,  130  Iowa,  85,  106 
N.  W.  378;  McDermott  v.  Mahoney  (Iowa  Sup.  ),  106  N.  W. 
925,  115  N.  W.  32;  McGuire  v.  Farber,  125  Iowa,  533,  101  N. 
W.  279 ;  Tracey  v.  Forbes,  132  Iowa,  250,  109  N.  W.  772 ;  Clem- 
ents v.  Stapleton,  136  Iowa,  137,  113  N.  W.  546;  Rounds  v. 
Alee,  116  Iowa,  345,  89  N.  W.  1098 ;  Cassady  v.  Sealy,  69  Iowa, 
509,  29  N.  W.  432;  Bird  v.  Phillips,  115  Iowa,  703,  87  N.  W. 
414 ;  Long  v.  Thompson,  73  Kan.  76,  84  P.  552 ;  Morris  v.  Fran- 
cis, 75  Kan.  580,  89  P.  901 ;  Sandefur  v.  Hines,  69  Kan.  168,  76 
P.  444;  Coleman  v.  Meade  CKy.),  13  Bush.  358;  Guthrie  v. 
Bright,  26  Ky.  L.  R.  1021,.  82  S.  W.  985;  Jacob  v.  Buchanan, 
11  Ky.  L.  R.  (abst.)  861;  Curry  v.  Fetter,  15  Ky.  L.  R,  (abst.) 
494 ;  Smith  v.  Lawrence,  98  Me.  92,  56  A.  455 ;  Carnes  v.  Fow- 
anZ,  180  Mass.  569,  63  N.  E.  122 ;  Rice  v.  Mayo,  107  Mass.  550 ; 
E olden  v.  Starks,  159  Mass.  503,  34  N.  E.  1069 ;  Whitaker  v. 
Engle,  111  Mich.  205;  69  N.  W.  493 ;  Hubbard  v.  Leiter,  145 
Mich.  387,  108  N.  W.  735;  McDonald  v.  Smtih,  99  Minn.  42, 


498  AMERICAN   LAW   EEAL   ESTATE   AGENCY. 

108  K  W.  291;  Peet  v.  Sherwood,  47  Minn.  347,  50  K  W.  241, 
929;  Rothschild  v.  Burritt,  47  Minn.  28,  49  N.  W.  393;  Awnabil 
v.  Traverse  Law  Co.  (Minn.  Sup.  '09),  121  N.  W.  233;  Huba- 
check  v.  Hazard,  83  Minn.  437,  86  N.  W.  426;  Fairchild  v. 
Cunningham,  84  Minn.  521,  88  N.  W.  15;  Cullen  v.  Bell,  43 
Minn.  226,  45  N.  W.  428 :  Enochs  v.  Paxton,  87  Miss.  660,  40 
S.  14;  Johnson  v.  Button  (Miss.  Sup.  '09),  49  S.  970;  Huggins  v. 
Hearne,  74  Mo.  App.  86;  McCray  v.  Pfost,  118  Mo.  App.  672, 

94  S.  W.  998;  Morgan  v.  Keller,  194  Mo.  663,  92  S.  W.  75; 
Veatch  v.  Norman,  95  Mo.  App.  500,  69  S.  W.  472;  Sallee  v. 
McMurray,  113  Mo.  App.  253,  88  S.  W.  157;  Brown  v.  Smith, 
113  Mo.  App.  59,  87  S.  W.  556 ;  Butts  v.  Ruby,  85  Mo.  App.  405 ; 
Finley  v.  Dyer,  79  Mo.  App.  604 ;  Hayden  v.  Grillo,  26  Mo.  App. 
289;  Chipley  v.  Leuthe,  60  Mo,  App.  15;  Gelott  v.  Ridge,  117 
Mo.  533,  23  S.  W.  882 ;  Goodson  v.  EmMeton,  106  Mo.  App.  77, 
80  S.  W.  22 ;  Harmon  v.  Enright,  107  Mo.  App.  560,  81  S.  W. 
1180 ;  Yoder  v.  White,  75  Mo.  App.  155 ;  Warren  v.  Cram,  71  Mo. 
App.  638;  Siemson  v.  Homan,  35  Neb.  892,  53  N.  W.   1012; 
Potvin  v.  Curran,  13  Neb.  302,  14  N.  W.  400;  Stewart  v.  Smith, 
50  Neb.  631,  70  N.  W.  235;  Tracey  v.  Dean,  77  Neb.  382,  109 
N.  W.  505;  Parker  v.  Estabrook,  68  N.  H.  349,  44  A.  484; 
Courtier  v.  Lydecker,  71  N.  J.  L.  511,  58  A.  1093;  Siblald  v. 
Bethlehem  Iron  Co.,  83  N.  Y.  378 ;  Bloodgood  v.  Short,  98  N.  Y. 
S.  775,  50  Misc.  286 ;  Moore  v.  Maguire,  98  N.  Y.  S.  752 ;  Shapiro 
v.  Nadler,  99  N.  Y.  S.  879,  51  Misc.  13;  O'Toole  v.  Tucker,  40 
N.  Y.  S.  695,  17  Misc.  554,  75  St.  101;  Mwtin.  v.  Wermann, 

95  N.  Y.  S.  284,  107  App.  Div.  482 ;  Miller  v.  B'arth,  71  N.  Y.  S. 
989,  35  Misc.  372,  74  N.  Y.  S.  869,  36  Misc.  810;  Allen  v.  James, 
1  Daly  (N.  Y.),  13;  Seidman  v.  Banner,  51  Misc.   (N.  Y.)  10, 
99  N.  Y.  S.  862 ;  Behrman  v.  Marcus,  102  N.  Y.  S.  467 ;  Lovell 
v.  Clench,  101  N.  Y.  S.  174,  115  App.  Div.  635;  McGill  v.  Gar- 
goula,  103  N.  Y.  S.  113;  Rosenstcin  v.  Bogel,  108  N.  Y.  S.  957, 
124  App.  Div.  527 ;  Willner  v.  Seale,  111  N.  Y.  S.  699,  127  App. 
Div.  180;  Van  Or  den  v.  Morris,  18  Misc.   (N.  Y.)   579,  42  N. 
Y.  S.  473;  Moses  v.  Helmke,  41  N.  Y.  S.  557,  18  Misc.  357; 
Duclos  v.  Cunningham,  102  N.  Y.  S.  678,  6  N.  E.  790;  Miller 
v.  Irish,  67  Barb.  (N.  Y.)  256;  Smith  v.  Smith,  1  Sweeney  (N. 
Y.),  552;  Krahner  v.  Heilm.an,  16  Daly  (N.  Y.),  132,  9  N.  Y. 
S.  633;  Burling  v.  Gunthtr,  12  Daly  (N.  Y.),  6;  Folinsbee  v. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  499 

Sawyer,  28  N".  Y.  S.  698,  8  Misc.  370;  Barnard  v.  Monnott,  1 
Abb.  Dec.  (N.  Y.)  108,  3  Keyes,  203,  33  How.  Pr.  440;  Boyd 
v.  Imp.  Prop.  Holding  Co.,  120  N.  Y.  S.  850 ;  Verder  v.  Seaton, 
83  N.  Y.  S.  159,  85  App.  Div.  196 ;  Dennis  v.  Charlick,  6  Hun 
(N.  Y.),  21;  Heinrich  v.  Kern,  4  Daly  (N.  Y.),  74;  Levy  v. 
Ruff,  22  N.  Y.  S.  744,  3  Misc.  14:7;  Steinhouse  v.  Klueppel,  81 
N.  Y.  S.  116,  80  App.  Div.  445;  Curtis  v.  Mott,  35  N.  Y.  S. 
983,  90  Hun,  439;  Folsom  v.  Lewis,  36  N.  Y.  S.  270,  14  Misc. 
605;  Mullenhoff  v.  Gender,  15  N.  Y.  S.  673;  Raleigh,  R.  E. 
Trust  Co.,  v.  Adams.  145  N.  C.  161,  58  S.  E.  1008;  Ward  v. 
McQueen,  13  N.  D.  153,  100  N.  W.  253 ;  Heintz  v.  Boehmer,  4 
Ohio  N.  P.  226,  6  Ohio  S.  &  C.  P.. Dec.  362;  Birch  v.  McNaught 
(Okla.  Sup.  '09),  101  P.  1049;  Toder  v.  Randal,  16  Okla.  308, 
83  P.  537,  3  L.  R.  A.  N.S.  576 ;  Ball  v.  Dolan,  18  S.  D.  558,  101 
N.  W.  719;  Mattes  v.  Enget,  15  S.  D.  330,  89  N.  W.  651;  Howie 
v.  Batrud,  14  S.  D.  648,  86  N.  W.  747 ;  Ornyski  v.  Menger,  15 
Tex.  Civ.  App.  448,  39  S.  W.  388;  Smye  v.  Groesbeck  (Tex. 
Civ.  App.  '02),  73  S.  W.  972;  Brackenridge  v.  Claridge  (Tex. 
Civ.  App.  '97),  42  S.  W.  1005,  reversed  91  Tex.  127,  144  S.  W. 
819;  43  L.  R.  A.  593;  Hambergcr  v.  Thomas  (Tex.  Civ.  App. 
'09),  118  S.  W.  770;  Baldwin  v.  Smith  (Tex.  Civ.  App.  '09), 
119  S.  W.  Ill;  Burnett  v.  Edling,  19  Tex.  Civ.  App.  711,  48 
S.  W.  775;  O'Brien  v.  GiUiland,  4  Tex.  Civ.  App.  40,  23  S.  W. 
244;  Reynolds-McGuinness  Co.  v.  Green,  78  Vt.  28,  61  A.  556; 
Cooper  v.  Upton  (W.  Va.  Sup.  '09),  64  S.  E.  523;  Neely  v. 
Lewis,  38  Wash.  20,  80  P.  175 ;  Neely  v.  Schultz,  38  Wash.  699, 
80  P.  176 ;  Muir  v.  Moeller,  46  Wash.  601,  90  P.  1042 ;  Barnes 
v.  German  Sav.,  etc.,  Soc.,  21  Wash.  448,  58  P.  569 ;  English  v. 
Wm.  George  Realty  Co.  (Tex.  Civ.  App.  '09),  117  S.  W.  996; 
Little  v.  Fleischman  (Utah  Sup.  '09),  101  P.  984;  Frinck  v. 
Gilbert  (Wash.  Sup.  '09),  101  P.  770;  Burden  v.  Briquilet,  125 
Wis.  341,  104  N.  W.  83 ;  Arnold  v.  Nat.  Bk.  Waupaca,  126  Wis. 
362,  105  N.  W.  828,  3  L.  R.  A.  N.S.  580;  Oliver  v.  Katz,  131 
Wis.  409,  111  N.  W.  509;  McArthur  v.  Slosson,  53  Wis.  41,  9 
N.  W.  784 ;  Frost  v.  Houx,  15  Wyo.  353,  89  P.  568 ;  McGavock 
v.  Woodlief,  20  Howard  (U.  S.),  221;  Brydes  v.  Clement,  14 
Manitoba,  588. 

If  the  broker  employed  to  find  a  purchaser  brings  to  the 
owner  a  person  who  is  able,  ready  and  willing  to  buy  on  the 


500  AMERICAN   LAW   REAL   ESTATE    AGENCY. 

owner's  terms,  lie  is  entitled  to  compensation,  although  he  does 
not  make  or  negotiate  a  binding  contract  of  purchase.  Buck- 
ingham v.  Harris,  10  Colo.  455,  15  P.  817;  Monroe  v.  Snow, 
131  IU.  126,  23  N.  E.  401;  Ward  v.  Lawrence,  79  111.  295; 
Goodmanson  v.  Rosenstein,  114  111.  App.  243;  Fox  v.  Starr, 
106  111.  273;  Lockivood  v.  Rose,  125  Ind.  588,  25  N.  E.  710; 
Burling  v.  Gunther,  12  Daly  (N.  Y.),  6;  Folinsbee  v.  Sawyer, 
28  N.  Y.  S.  698,  8  Misc.  370 ;  Heintz  v.  Boehmer,  4  Ohio  N.  P. 
226,  6  Ohio  C.  &  C.  PI.  Dec.  362 ;  Mattes  v.  Engel,  15  S.  D.  330, 
89  N.  W.  651 ;  Barnes  v.  German,  etc.,  Sav.  Soc.,  21  Wash.  448, 
58  P.  569;  Brydes  v.  Clement,  14  Manitoba,  588;  Marriott  v. 
Brennan,  14  Ont.  L.  R.  508,  10  Ont.  W.  R.  159;  Willwrd  v. 
Wright  (Mass.  Sup.  '09),  89  N.  E.  559;  Dean  v.  Williams  (Wash. 
Sup.  '10),  106  P.  130;  Beongher  v.  Clark  (Kan.  Sup.  '09),  106 
P.  39;  Simmons  v.  Oneth  (Mo.  App.  '10),  124  S.  W.  534;  Wat- 
kins  v.  Thomas  (Mo.  App.  '10).  124  S.  W.  1063;  Slayback  v. 
Wetzel  (Me.  App.  '09),  123  S.  W.  982. 

A  broker  employed  to  sell  lands,  as  distinguished  from  a  bro- 
ker employed  merely  to  find  a  purchaser,  to  be  entitled  to  com- 
pensation, must  effect  a  sale  or  procure  from  his  customer  a 
binding  contract  therefor.  Ormsby  v.  Graham,  123  Iowa,  202, 
98  N.  W.  724. 

An  offer  to  buy  290,000  feet  of  land,  to  be  taken  from  a  par- 
cel containing  500,000  feet,  said  290,000  feet  to  be  divided 
as  to  front  and  back  lands  from  the  whole  parcel  as  nearly  equal 
as  possible,  where  accepted  by  the  owner  of  the  land,  entitles 
the  broker  employed  to  find  a  purchaser  therefor  to  his  com- 
mission, and  the  owner  will  not  be  heard  to  say  it  is  too  in- 
definite. Monk  v.  Parker,  180  Mass.  246,  63  N.  E.  793. 

Where  the  owner  of  property  placed  it  with  a  real  estate 
broker  for  sale,  who  accordingly  advertised  it,  and  the  pur- 
chaser thus  derived  information  that  the  property  was  for  sale, 
and  afterwards  negotiated  directly  with  the  owner  and  pur- 
chased the  property,  the  broker  was  entitled  to  his  commis- 
sions. Kilbourn  v.  King,  6  D.  C.  310;  Tyler  v.  Parr,  52  MQ, 
249 ;  Bell  v.  Kaiser,  50  Mo.  150 ;  Anderson  v.  Cox,  16  Neb.  10, 
20  N.  W.  10;  Kiernan  v.  Bloom,  86  N.  Y.  S.  899,  91  App.  Div. 
429;  Jackson  v.  Carrick,  25  Weekly  Notes  Gas.  (Pa.)  132.  There 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  501 

is  authority  to  support  the  contrary  doctrine.  Charlton  v. 
Wood,  11  Heisk.  (Tenn.)  19. 

Where  a  broker  employed  to  sell  land  negotiates  unsuccess- 
fully with  another  broker,  and  the  latter  subsequently  obtains 
authority  from  the  principal  under  which  he  effects  a  sale,  the 
fact  that  the  broker  after  the  sale  was  promised  by  the  pur- 
chaser an  interest  in  the  profits  of  the  land,  in  consideration 
that  he  should  look  after  it,  and  try  to  effect  a  sale  at  an  in- 
creased price,  did  not  constitute  him  a  purchaser  so  as  to  en- 
title the  first  broker  employed  to  the  commission.  Donvitte  v. 
Comstock,  110  Mich.  693,  69  N.  W.  79. 

Plaintiff  was  employed  by  defendant  to  sell  certain  prem- 
ises, and  procured  a  purchaser  at  ,$7,000,  to  be  paid  by  the 
assumption  of  a  first  mortgage  for  $3,500,  $2,500  in  cash,  and 
the  giving  of  a  second  mortgage  for  $1,000,  with  interest  at 
five  per  cent.;  this  offer  was  accepted  and  a  written  contract 
prepared,  which  provided  that  the  $1,000  should  be  evidenced 
by  a  demand  note;  the  purchaser  declined  to  perform  unless 
given  six  months  within  which  to  pay  the  latter  amount;  the 
owner  refused  to  extend  the  credit  longer  than  sixty  days:  it 
was  held  that  under  his  agreement  the  purchaser  was  entitled 
to  a  reasonable  time  within  which  to  pay  such  sum,  and  as  his 
demand  for  six  months  was  reasonable,  plaintiff  was  entitled 
to  commissions  for  the  sale.  Wendle  v.  Palmer,  11  Conn.  12, 
58  A.  12. 

If  the  principal  enters  into  a  contract  with  the  purchaser 
furnished  by  the  broker,  the  principal  will  be  held  to  have 
favorably  determined  the  purchaser's  responsibility  and  the 
commission  is  due,  although  the  purchaser  proves  irresponsible. 
Stievel  v.  Lolly,  89  Ark.  195,  115  S.  W.  1134 ;  Wray  v.  Carpen- 
ter, 16  Colo.  271,  27  P.  248;  Wriyht  v.  Brown,  68  Mo.  App. 
577;  Brady  v.  Foster,  75  N.  Y.  S.  994,  72  App.  Div.  416;  Sobaje 
v.  Schubert,  174  P.  364,  —  Gal.  App.  — .  Compare  Butler  v. 
BaJcer,  17  B.  I.  582,  23  A.  1019. 

As  a  slaughter  house  erected  on  the  lot  purchased  is  not 
shown  to  be  a  nuisance,  and  there  is  nothing  in  the  letter  or 
spirit  of  the  contract  to  prevent  the  use  of  the  lot  for  that 
purpose,  defendant  can  not  resist  plaintiff's  claim  for  commis- 
sions, because  the  lot  is  so  used.  Kavanaugh  v.  Bollard,  21 
Ky.  L.  R.  1683,  56  S.  W.  159. 


502  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Where  W.  agrees,  for  a  valuable  consideration,  to  pay  to  a 
broker  a  certain  sum  in  case  either  "W.  or  G.  should  "sell"  the 
described  premises,  a  bargain  made  by  W.,  unaided  by  G.,  to 
sell  the  land,  and  a  conveyance  accordingly  by  himself  and  wife, 
was  a  sale  within  the  meaning  of  the  contract.  Goward  v.  Wa- 
ters, 98  Mass.  596. 

An  agent  for  the  sale  and  management  of  the  estates  of  ab- 
sent proprietors  was  held  to  be  entitled  to  ten  per  cent,  on  all 
collections  made  by  him  and  remitted,  and  to  a  per  diem  al- 
lowance for  the  days  spent  by  him  in  the  management  of  the 
estate.  West  N.  J.  Society  v. -Morris,  Peters  (U.  S.  C.  C.),  59. 

Under  a  contract  by  which  defendant  agreed  to  pay  plaintiff 
a  specified  commission  if  he  (defendant)  succeeded  in  selling 
his  land  on  certain  terms  to  a  person  whom  plaintiff  had  brought 
to  him,  plaintiff  is  entitled  to  the  commission,  whether  the  sub- 
sequent sale  to  that  person  was  effected  through  plaintiff's  ef- 
forts, or  direct  by  defendant,  or  through  the  efforts  of  some 
third  person.  Gouge  v.  Hoyt,  127  Iowa,  340,  101  N.  W.  463. 

Under  a  contract  to  pay  plaintiff  a  certain  commission  on 
a  sale  of  defendant's  farm,  or  any  part  of  it,  at  a  certain  price 
accepted  by  defendant,  where  plaintiff  offered  the  farm  to  a 
party  who  subsequently  bought  it  through  another  agency, 
plaintiff  was  not  bound  to  actually  make  a  sale  to  entitle  him 
to  a  commission,  since  the  contract  merely  implied  an  employ- 
ment to  assist  in  making  a  sale.  Terry  v.  Reynolds,  111  Wis. 
122,  86  N.  W.  557. 

A  Frenchman  residing  in  Iowa  wrote  to  his  neighbor,  also 
a  Frenchman  and  a  land  broker,  who  had  gone  on  a  visit  to 
France,  to  procure  him  a  purchaser  for  his  farm  at  $4,000,  for 
which  he  would  allow  him  $200  brokerage.  The  broker  was 
approached  a  year  later  by  a  Frenchman  in  New  York  who 
desired  to  purchase  a  farm.  The  broker  took  him  to  Iowa, 
showed  him  the  farm  in  question,  told  the  seller  to  be  reason- 
able in  his  terms,  and  afterwards  remarked  to  a  witness  that 
he  had  fetched  the  seller  to  terms.  The  purchaser  took  the 
land  at  $4,000.  Held,  that  the  evidence  was  insufficient  to  show 
that  the  broker  was  the  agent  of  the  buyer,  and  not  of  the 
seller,  and  that  he  was  entitled  to  the  agreed  compensation  of 
$200.  Dubois  v.  Dubois,  54  Iowa,  216,  6  N.  W.  261. 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  503 

An  agreement  by  brokers  affecting  an  exchange  of  lands 
that  the  owner  of  one  piece  shall  pay  no  commissions  until  they 
have  placed  mortgages  on  the  other  piece,  is  merely  a  condi- 
tion, and  the  commission  is  one  on  the  exchange,  and  not  the 
result  of  the  distinct  transaction.  Parker  v.  Merrill,  173  Mass. 
391,  53  N.  E.  913. 

Where  a  broker,  having  but  a  limited  time  within  which 
to  effect  a  sale,  failed  to  do  so  within  that  time,  and  the  prin- 
cipal declined  to  be  further  bound;  and  subsequently,  the  bro- 
ker sought  to  have  him  again  consent  to  make  the  sale,  and  to 
induce  him  to  do  so  agreed  to  charge  less  commissions  than 
those  contemplated,  and  thus  procured  the  seller  to  consum- 
mate a  sale,  the  commissions  of  the  broker  are  to  be  charged 
under  the  new  contract  and  not  that  originally  made.  Phinzy 
v.  Bush,  129  Ga.  479,  59  S.  E.  259. 

A  broker  who  accomplishes  the  purposes  of  his  agency  in 
accordance  with  his  instructions  earns  his  compensation.  Ear- 
vey  v.  Hamilton,  155  111.  377,  40  N.  E.  592;  Slotboom  v.  Simp- 
son Lumber  Co.,  136  P.  641,  67  Or.  516,  Ann.  Gas.  1915  C,  339, 
den.  re.,  115  P.  889,  67  Or.  516. 

Broker  entitled  to  commission  for  purchaser  procured  by  bro- 
ker's sub-agent  with  owner's  knowledge.  Bound  v.  Simkins,  151 
S.  W.  572;  Strickland  v.  Fairfax,  65  S.  E.  177,  110  Va.  142; 
Tilton  v.  James  L.  Gates  Land  Co.,  121  N.  W.  331,  140  Wis.  197. 

Where  P.  obtained  a  lease  of  certain  land  from  defendant  for 
the  benefit  of  an  undisclosed  corporation,  of  which  he  was  man- 
ager and  for  which  he  was  acting,  defendant's  want  of  knowledge 
of  the  corporation  was  no  bar  to  its  subsequent  right  to  recover 
commissions  for  the  alleged  sale  of  land  through  its  efforts.  Sat- 
isfaction Title  &  Inv.  Co.  v.  York,  131  P.  444,  54  Colo.  566. 

The  mere  fact  that  plaintiff  urged  B.  to  look  at  defendant's 
farm,  concerning  which  he  already  had  full  knowledge,  did  not 
constitute  a  "showing"  of  the  farm  to  B.  within  the  provisions 
of  the  contract  obligating  defendant  to  pay  commissions  in  case 
of  a  sale  to  any  person  to  whom  plaintiff  had  shown  the  land. 
Winthrop  Land  Co.  v.  Utley,  125  N.  W.  164,  146  Iowa,  310. 

Where  plaintiffs  were  engaged  to  visit  various  towns  and  fur- 
nish defendants  with  information  in  regard  to  and  to  assist  them 


504  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

in  procuring  lots  to  be  platted,  the  agency  did  not  require  plain- 
tiffs to  make  purchases  or  bring  defendants  into  direct  communi- 
cation with  the  owners  of  the  land  found.  J.  A.  Dean  &  Son  v. 
Goodrich,  140  N.  W.  435,  160  Iowa,  98. 

Where  defendant  agreed  to  pay  plaintiffs  half  the  commission 
on  a  sale  of  any  East  Texas  land  to  parties  sent  to  defendant  by 
plaintiffs,  it  was  not  necessary,  to  entitle  plaintiffs  to  recover 
commission,  that  the  purchaser  sent  to  defendant  intended  to 
purchase  a  particular  tract.  Trice  &  Ludolph  v.  Cone,  163  S.  W. 
587,  —  Tex.  Civ.  App.  — . 

Where  broker  sells  lands  on  terms  different  from  those  in  list 
agreement,  the  owner  assenting  to  the  sale  on  understanding  that 
commission  shall  be  different  from  that  first  agreed  on,  no  com- 
mission, other  than  that  fixed  by  new  agreement,  is  recoverable. 
Paulson  v.  Reeds,  167  K  W.  371,  —  K  D.  Sup.  — . 

Where  broker's  commission  is  dependent  upon  certain  condi- 
tions or  contingencies,  as  upon  a  consummation  of  sale,  or  pay- 
ment of  the  purchase  price  or  a  specified  part  thereof,  or  a  net 
price  to  the  owner,  these  stipulations  will  govern,  and  a  fulfill- 
ment of  the  prescribed  conditions  is  generally  essential  to  the 
right  of  recovery  of  compensation.  Williamson  R.  E.  Co.  v. 
Sasser,  103  S.  E.  73,  —  N.  C.  Sup.  — . 

Sec.  558.    When  commissions  are  not  earned  by  broker. 

Ordinarily  a  broker  is  not  entitled  to  commissions  for  per- 
forming services  which  by  the  local  custom  are  rendered  gra- 
.tuitously.  Courey  v.  Hoover,  10  La.  Ann.  437.  If  a  broker  em- 
ployed to  negotiate  a  loan  abandons  the  employment  he  is  not 
entitled  to  a  commission  on  the  transaction  being  afterwards 
effected.  Everett  v.  Parrel,  11  Ind.  App.  185,  38  K  E.  872; 
Bouscher  v.  LarTcens,  32  N.  Y.  S.  305,  84  Hun,  288;  Holley  v. 
Townsend,  2  Hilt.  (N.  Y.)  34.  See  also  Sec.  292. 

An  agency  to  buy,  sell  exchange  or  lease  property  is  revocable 
at  any  time  before  sale,  unless  coupled  with  an  interest  or 
given  for  a  valuable  consideration,  and  after  his  authority  has 
been  withdrawn  a  broker  is  not  entitled  to  compensation  for 
finding  a  purchaser.  Brown  v.  Pfau,  38  Cal.  550;  Young  v. 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  505 

Trainer,  158  111.  428,  42  N.  E.  139;  Wilson  v.  Dyer,  12  Ind. 
App.  320,  39  N.  E.  163;  Kavanawgh  v.  Bollard,  21  Ky.  L.  R. 
1683,  56  S.  W.  159 ;  Cadigan  v.  Crabtree,  186  Mass.  7,  70  N.  E. 
1033,  179  Mass.  474,  61  N.  E.  37,  55  L.  E.  A.  77,  66  L.  E.  A.  982; 
West  v.  Dennis,  128  Mich.  11,  87  N.  W.  95;  Fairchild  v.  Cun- 
ningham, 84  Minn.  521,  88  N.  W.  15;  Kesterson  v.  Chauvranb 
(Mo.  App.  '02),  70  S.  W.  1091;  Green  v.  Wright,  36  Mo.  App. 
298 ;  Vincent  v.  Woodland  Oil  Co.,  165  Pa.  St.  402,  30  A.  991. 

Where  an  agent's  authority  to  sell  lands  is  revoked,  and; 
the  owner  in  good  faith  thereafter  sells  upon  less  favorable 
terms  to  one  who  had  declined  to  purchase  from  the  agent, 
such  agent  is  not  entitled  to  commissions.  Bailey  v.  Smith,  103 
Ala.  641,  15  S.  900;  UpJwf  v.  Ulrich,  2  111.  App.  399;  Blodgett 
v.  Sioux  City,  etc.,  R.  Co.,  63  Iowa,  606,  19  N.  W.  799 ;  Gillett 
v.  Corum,  5  Kan.  608;  Stedman  v.  Richardson,  100  Ky.  79,  37 
S.  W.  259,  18  Ky.  L.  E.  567;  Beeler  v.  Cresswell,  3  Md.  196; 
Cadigan  v.  Crabtree,  179  Mass.  474,  61  N.  E.  37,  55  L.  E.  A.  77 ; 
Alden  v.  Earle,  4  N.  Y.  S.  548,  56  Super.  Ct.  366 ;  Mallonee  v. 
Young,  119  N.  C.  549,  26  S.  E.  141;  Neal  v.  Lehman,  11  Tex. 
Civ.  App.  461,  34  S.  W.  153;  Corse  v.  Kelly  (Kan.  Sup.  '09), 
101  P.  1016.  1016;  Ernst  v.  Ganahl,  137  P.  256,  166  Cal.  493. 

A  broker  who  fails  to  procure  a  license  to  carry  on  his  busi- 
ness, in  most  of  the  localities  where  that  is  required  by  law, 
can  not  recover  commissions  for  acting  as  such.  Whitfield  v. 
Huling,  50  111.  App.  179;  Eckert  v.  Collot,  46  111.  App.  361; 
Richardson  v.  Brix,  94  Iowa,  626;  63  N.  W.  325;  Young  v. 
Denning,  52  Kan.  629,  35  P.  207 ;  Buckley  v.  Humason,  50  Minn. 
195,  52  N.  W.  385 ;  Johnson  v.  Rulings,  103  Pa.  St.  498 ;  Steven- 
son v.  Emg,  87  Tenn.  46,  9  S.  W.  230;  Wicks  v.  Carlisle,  12 
Okla.  337,  72  P.  377;  Saule  v.  Ryan  (Tenn.  Ch.  App.  '99),  53 
S.  W.  977;  Costello  v.  Goldbeck,  9  Phila,  (Pa.)  158. 

Where  a  sub-agent  conceals  from  the  principal  the  fact  that 
he  is  acting  for  the  agent,  the  latter  can  not  recover  commis- 
sions. Mullen  v.  Bowen,  22  Ind.  App.  294,  53  N.  E.  790. 

If  a  broker  employed  to  sell  property,  buys  it  for  himself, 
and  does  this  without  the  consent  of  his  principal,  he  is  not 
entitled  to  commissions.  Finnerty  v.  Fritz,  5  Colo.  174;  Ham- 
mond v.  Bookwalter,  12  Ind.  App.  177,  39  N.  E.  872;  Jansen 
v.  Williams,  36  Neb.  869,  55  N.  W.  279,  20  L.  E.  A.  207 ;  Powers 


506  AMERICAN   LAW  REAL   ESTATE   AGENCY. 

v.  Black,  159  Pa.  St.  153,  28  A.  133 ;  Miller  v.  Holland,  1  Weekly 
Notes  Gas.  (Pa.)  36;  Ryan  v.  Kahler  (Tex.  Civ.  App.  '98),  46 
S.  W.  71. 

All  agreements  between  a  real  estate  agent  or  broker  and 
a  proposed  purchaser  touching  the  subject  matter  of  his  em- 
ployment which  are  not  disclosed  to  his  principal  should  be 
scrutinized  closely,  and  if  not  found  compatible  with  entire  in- 
tegrity and  good  faith  toward  his  principal,  they  will  defeat  the 
agent's  claim  for  commissions  from  his  principal.  Hobart  v. 
Sherburne,  66  Minn.  1717  68  N.  W.  841. 

One  employing  a  broker  to  sell  property,  without  giving  to 
him  the  exclusive  right  to  sell,  may  negotiate  a  sale  himself, 
and,  if  he  does  so  without  the  agency  of  the  broker,  and  be- 
fore the  latter  has  procured  a  purchaser,  he  is  not  liable  to 
the  broker  for  commissions,  although  the  broker  produced  a 
purchaser  after  a  sale  by  the  owner.  Hill  v.  Jeff ,  55  Ark.  574, 
18  S.  W.  1047;  Waterman  v.  Boltinghouse,  82  Cal.  659,  23  P. 
195 ;  Dolan  v.  Scanlan,  57  Cal.  261 ;  Doonan  v.  Ives,  73  Ga.  295 ; 
Curtis  v.  Wagner,  98  111.  App.  345 ;  Stewart  v.  Murray,  92  Ind. 
543 ;  Buck  v.  Hogeboom,  125  Iowa,  526,  90  N.  W.  635 ;  McClave 
v.  Paine,  49  N.  Y.  561 ;  Brown  v.  Snyder,  68  N.  Y.  S.  224,  57 
App.  Div.  413;  Chilton  v.  Butler,  1  E.  D.  Smith  (N.  Y.),  150; 
Scherer  v.  Colwell,  87  N.  Y.  S.  490,  43  Misc.  390;  Harris  v. 
Rogers,  15  N.  Y.  St.  396 ;  Evans  v.  Gay,  38  Tex.  Civ.  App.  442, 
74  S.  W.  575.  See  also  Sees.  142,  449. 

"Where  a  broker  is  instructed  by  his  principal  to  ascertain 
the  actual  rentals  of  a  property  sought  in  exchange,  and  the 
agent  procures  an  erroneous  statement  thereof,  although  believ- 
ing it  to  be  true,  where  the  principal  relies  on  it  and  he  con- 
tracts to  exchange  the  property,  but  rescinds  the  contract  on 
learning  the  facts,  the  broker  is  not  entitled  to  compensation. 
Marcus  v.  Bloomingdale,  71  N.  Y.  S.  374,  63  App.  Div.  227. 

A  broker  who  is  unsuccessful  in  effecting  a  transaction  sub- 
ject to  the  approval  of  his  principal,  is  not  entitled  to  a  com- 
mission upon  a  sale  subsequently  made  by  another  broker.  Ooin 
v.  Hess,  102  Iowa,  140,  71  N.  W.  218;  Latshaw  v.  Moore,  53 
Kan.  234,  36  P.  342 ;  Walton  v.  N.  O.,  etc.,  R.  Co.,  23  La.  Ann. 
398;  Ward  v.  Fletcher,  124  Mass.  224;  Donville  v.  Comstock, 
110  Mich.  693,  69  N.  W.  79;  Thuner  v.  Ranter,  102  Mich.  59, 


COMMISSION  AND  COMPENSATION  OP  AGENTS.  507 

GO  N.  W.  299;  Wilson  v.  Alexander  (Tex.  Sup.  '92),  18  S.  W. 
1057. 

Where  a  broker  found  a  customer  to  whom  the  owner  sold 
the  property  after  the  termination  of  the  employment,  the  bro- 
ker was  not  entitled  to  a  commission,  where  the  broker  found 
the  customer  previous  to  his  employment,  and  the  negotiations 
for  the  sale  were  conducted  without  his  aid.  Cushman  v.  Gori, 
1  Hilt.  (N.  Y.)  356.  See  also  Sees.  19,  21,  169,  454. 

Where  a  broker  is,  by  agreement,  to  receive  commissions  for 
procuring  a  purchaser  for  land  only  on  condition  that  a  sale  is 
made  to  a  certain  purchaser,  he  can  not  recover  if  a  sale  to 
such  purchaser  is  not  consummated,  owing  to  the  fault  of  either 
of  the  parties.  Lyle  v.  Univ.  Land,  etc.,  Co.  (Tex.  Civ.  App. 
'95),  30  S.  W.  723. 

Where  a  vendor  employs  a  broker  to  effect  a  sale  of  land, 
and,  relying  wholly  on  the  broker  does  not  exercise  his  own 
judgment  as  to  the  responsibility  of  a  purchaser  found  and 
presented  by  the  broker,  but  signs  a  contract  of  sale,  which  the 
purchaser  is  unable  to  carry  out,  the  broker  is  not  entitled  to 
compensation.  Butler  v.  Baker,  17  R.  I.  582,  23  A.  1019.  Com- 
pare Wray  v.  Carpenter,  16  Colo.  271,  27  P.  248;  Wright  v. 
Brown,  68  Mo.  App.  577 ;  Brady  v.  Foster,  75  N.  Y.  S.  994.  72 
App.  Div.  416.  See  also  Sec.  464. 

If  a  broker  releases  his  right  to  a  commission  in  considera- 
tion that  the  principal  would  give  him  further  business,  the 
principal's  failure  to  keep  his  promise  does  not  entitle  the  bro- 
ker to  recover  the  original  renounced  commission;  his  remedy, 
if  any,  is  an  action  on  the  promise.  Lindt  v.  Schlitz  Brewing 
Co.,  113  Iowa,  200,  84  N.  W.  1059.  See  also  See.  1073. 

A  real  estate  broker's  contract  for  commissions  for  the  sale 
of  land  which  provides  that  "when  said  land  is  sold"  he  shall 
have  a  certain  per  cent,  of  the  price  out  of  the  first  money  col- 
lected, but  which  fails  to  give  him  exclusive  authority  to  sell, 
does  not  entitle  him  to  such  commission  on  a  sale  made  by  the 
owner  himself.  Tracey  v.  Abney,  122  Iowa,  306,  98  N.  W.  121. 

Defendant  agreed  to  pay  plaintiff  certain  compensation  to 
sell  his  farm  for  $20,000,  to  be  paid  as  follows:  First  mort- 
gage $5,000,  second  mortgage  $2,500,  the  balance  to  defendant 


508  AMERICAN   LAW   EEAL   ESTATE    AGENCY. 

in  cash;  the  mortgages  were  made  to  secure  bonds  of  defend- 
ant. Held,  that  plaintiff  did  not  earn  the  compensation  by  the 
tender  of  a  contract  whereby  the  purchaser  agreed  to  pay  that 
portion  of  the  price  represented  by  the  mortgages,  "by  assum- 
ing" these  mortgages,  in  the  absence  of  evidence  that  the  mort- 
gages were  not  due  and  could  not  be  paid.  Schultz  v.  Griffin, 
24  N.  E.  480,  121  N.  Y.  294.  See  references  under  Sec.  307. 

"Where  one  authorized  to  sell  certain  property  within  a  speci- 
fied time,  he  to  have  a  certain  amount  for  procuring  a  pur- 
chaser or  making  a  sale,  notifies  the  owner  within  the  time 
that  he  has  secured  a  proposition  on  certain  terms,  at  the  price 
fixed,  and  the  proposition  is  not  accepted,  he  can  not  recover  the 
agreed  compensation,  the  customer  being  one  with  whom  the 
owners  had  themselves  been  in  treaty  for  the  property  for  sev- 
eral months  prior  thereto,  and  who  had  that  day  made  them 
an  offer  of  the  same  amount.  Hartley  v.  Anderson,  150  Pa. 
St.  391,  24  A.  675.  See  also  Sees.  19,  21,  169,  454. 

Plaintiff  claimed  that  defendant  authorized  him  to  sell  a  ten- 
acre  tract  for  $17,000,  and  that  he  obtained  a  purchaser  at 
that  price.  In  an  action  for  the  commissions,  plaintiff's  al- 
leged purchaser  testified  that  plaintiff  offered  him  the  land  at 
that  price;  that  he  told  plaintiff  that  he  would  take  it,  and  to 
get  an  option  on  the  property;  when  plaintiff  returned  and 
told  him  that  defendant  would  sell  only  about  nine  acres,  he 
told  plaintiff  to  get  an  option  on  the  best  terms  he  could  and 
he  would  consider  it;  an  option  was  obtained  on  the  nine  acres 
but  never  accepted.  Defendant's  reason  for  not  selling  over 
nine  acres  was,  that  he  wanted  the  balance  for  a  street.  "Wit- 
ness testified  that  he  thought  defendant  intended  putting  a 
street  through,  and  that  he  wanted  the  option  to  see  if  de- 
fendant would  insist  on  it.  Witness  testified  that  he  intended  to 
take  the  land  if  he  got  the  whole  ten  acres  for  the  price  named. 
Held,  that  a  verdict  should  have  been  directed  for  defendant,  on 
the  ground  that  plaintiff  did  not  obtain  a  purchaser.  Hannan  v. 
Fisher,  82  Mich.  208,  46  N.  W.  225.  See  Sec.  33. 

A  provision  in  a  contract  employing  a  broker  to  procure  a 
purchaser  before  a  certain  date,  of  real  estate,  stipulated  that 
if  the  premises  were  sold  after  such  date  on  information  from 


COMMISSION  AND  COMPENSATION  OF  AGENTS.  509 

him  he  should  receive  commissions.  The  premises  were  sold 
subsequent  to  such  date  through  other  brokers  for  a  Ies3 
price.  The  purchaser  learned  that  the  property  was  for  sale 
from  the  owner's  attorney  advertising  the  same.  There  was 
nothing  to  show  that  the  broker  started  the  negotiations  be- 
tween the  purchaser  and  owner,  nor  was  there  anything  to 
show  bad  faith  on  the  part  of  the  owner.  Held,  that  the  bro- 
ker was  not  entitled  to  commissions.  Shipman  v.  Wilkeson,  112 
N.  Y.  S.  895. 

A  real  estate  broker  who  expressly  contracts  to  sell  and  con- 
vey for  cash  is  not  entitled  to  commissions  by  merely  securing 
a  competent  person  for  the  purchase  of  the  land.  Burnett  v. 
Botts,  143  111.  App.  160,  affirmed  86  N.  E.  258.  See  Sec.  449. 

The  mere  fact  that  real  estate  was  sold  to  the  person  to  whom 
a  broker  employed  to  procure  a  purchaser  had  five  or  six  months 
previous  to  the  sale  given  the  information,  without  informing 
the  owner  or  doing  anything  further  to  effect  a  sale,  was  not 
sufficient  to  entitle  the  broker  to  commissions.  Waters  v.  Ra- 
falsky,  119  N.  Y.  S.  271.  See  Sees.  360,  471,  489. 

Where  a  real  estate  broker,  who  had  been  authorized  to  sell 
the  timber  of  a  tract  of  land  merely  informed  the  purchaser 
who  had  been  negotiating  with  the  owners  for  some  time  in 
regard  to  purchasing  the  land,  that  he  had  the  land  for  sale, 
but  did  nothing  further,  and  knew  nothing  of  the  subsequent 
negotiation  which  led  up  to  the  sale,  which  was  not  made  un- 
til the  vendor  agreed  that  a  mill  and  the  down  timber  would 
be  included,  and  also  agreed  to  the  purchaser's  terms  as  to 
time  of  payment,  the  broker  was  not  the  efficient  agent  in  or 
the  procuring  cause  of  the  contract  so  as  to  entitle  him  to  com- 
missions. Goff  v.  Hurst  (Ky.  Ct.  App.  '09),  122  S.  W.  148. 

Broker  held  not  entitled  to  commissions  for  effecting  par- 
ties to  consider  an  exchange,  where  they  refused  to  sign  the 
contract  therefor.  Reynolds  v.  Toch,  121  N.  Y.  S.  85. 

Defendant  authorized  plaintiff  to  sell  certain  property  for 
her  at  $40,000.  The  best  offer  plaintiff  obtained  was  $38,000, 
and  the  property  was  subsequently  sold  by  a  third  person  for 
$39,000.  Held,  that  plaintiff  did  not  produce  a  party  willing, 
ready  and  able  to  purchase  on  defendant's  terms,  and  could 


510  AMERICAN   LAW    REAL   ESTATE   AGENCY. 

not  therefore  claim  commissions.  Senior  v.  Fitzgerald,  119  N". 
Y.  S.  745.  See  also  Sec.  426. 

A  broker's  commission  was  not  earned  on  the  theory  that  they 
had  procured  a  binding  contract,  where  it  was  not  susceptible  of 
specific  performance,  because  providing  that  on  non-performance 
the  buyer  should  be  subject  to  a  forfeiture  of  the  deposit.  Os- 
wald  Realty  Co,  v.  Brouseard,  159  S.  W.  153,  —  Tex.  Civ.  App. 
— ;  Simpson  v.  Eardley,  137  S.  W.  378,  —  Tex.  Civ.  App.  — . 

Where  in  a  contract  of  exchange  one  of  the  parties  agrees  to 
pay  broker  who  is  not  a  party  thereto  a  commission,  he  may,  if 
deal  is  not  consummated  because  the  other  can  not  convey  a  good 
title,  rescind  the  contract,  and  is  thereby  relieved  of  liability  to 
pay  commission.  Brion  v.  Cahill,  165  P.  704,  —  Cal.  App.  — . 

A  broker  whose  right  to  sell  is  limited  to  a  specific  time,  and 
who  effects  no  sale  within  that  time,  is  not  entitled  to  a  commis- 
sion, though  the  owner  later  sells  to  the  one  with  whom  the 
broker  has  been  negotiating,  provided  the  owner  does  not  fraudu- 
lently terminate  the  contract  or  prevent  a  sale  by  the  broker. 
Langer  v.  Aycock,  209  S.  W.  199,  —  Tex.  Civ.  App.  — . 


PART  V. 

PLEADINGS,  PRACTICE  AND  JUDI- 

CIAL  CONSTRUCTIONS  AND 

INTERPRETATIONS. 

511 


CHAPTER  I. 

SECTION.  564.     Correspondence. 

559.  Doctrine  of  public  policy.  565.     Advancements. 

560.  Acquiescence  and  waiver  and       566.     The  borrower. 

effect      upon      brokers'      567.     Acceptances, 
rights.  568.     Conformity. 

561.  Advertising    and    advertise-       569.     Costs. 

ments.  570.     Conditions  precedent  to  right 

562.  Accord  and   satisfaction.  to  commissions. 

563.  Breach  of  contract. 

Sec.  559.    Doctrine  of  public  policy. 

Plaintiff  entered  into  a  contract  with  defendants  whereby 
he  was  to  have  a  certain  commission  for  furnishing  a  purchaser 
for  their  mine;  he  furnished  a  purchaser,  a  sale  was  made, 
and  defendant  refused  to  pay  the  commission.  Held,  that  the 
fact  that  plaintiff  was  employed  by  the  purchasers  to  manage 
one  of  their  mines,  did  not  make  him  their  agent  in  regard  to 
the  purchase,  and  he  was  not  acting  as  agent  for  both  parties 
to  the  contract  so  as  to  render  his  transaction  void  as  against 
public  policy.  Owen  v.  Matthews,  123  Mo.  App.  463,  100  S. 
W.  492.  See  also  Sec.  454.  Compare  Sec.  405. 

The  employment  of  the  same  broker  by  both  parties,  merely 
to  bring  them  together,  is  not  against  public  policy,  and  he  may 
recover  commissions  from  each.  McLure  v.  Luke,  154  Fed.  647. 
See  also  Sees.  475,  578. 

A  contract  whereby  a  broker  for  the  purchaser  was  to  secure 
his  commission  from  the  vendors  is  not  contrary  to  public  policy, 
if  the  vendors  understood  that  the  broker  was  representing  the 
purchaser.  Foss  v.  N.  Y.  Gen.  &  H.  R.  R.  Co.,  146  N.  Y.  Sup. 
930,  161  App.  Div.  681,  judg.  aff.,  112  N.  E.  1059,  217  K.  Y. 
727. 

An  agreement  between  a  broker  employed  to  procure  a  pur- 
chaser of  real  estate  and  a  prospective  purchaser  binding  the 
broker  not  to  procure  any  other  customer,  and  binding  the  pur- 

513 


514  AMERICAN  LAW  BEAL  ESTATE   AGENCY. 

chaser,  in  consideration  thereof,  to  pay,  if  he  purchases,  to  the 
hroker,  a  specified  commission,  is  contrary  to  public  policy,  and 
is  not  enforceable  on  the  purchaser  acquiring  the  premises. 
Edbinowitz  v.  Pizer,  108  N.  Y.  S.  994. 

Although  one  of  the  principals  may  have  known  of  the  double 
agency  of  the  broker,  and  the  transaction  was  advantageous 
to  said  principal,  the  act  is  against  public  policy  and  bars  re- 
covery of  commissions.  Conwell  v.  Smith,  142  Pa.  St.  25,  21 
A.  793,  12  L.  R.  A.  395 ;  Chapman  v.  Currie,  51  Mo.  App.  40 ; 
Lightcap  v.  Nicolai,  34  Pa.  Super.  Ct.  189;  Sumner  v.  Dires- 
kiawicz  (Conn.  Sup.  '09),  74  A.  906.  See  also  Sec.  706a.  A 
contract  of  the  purchaser  Avith  the  seller's  broker  to  convey  to 
the  latter  a  part  of  the  land  bought,  is  unenforceable  as  against 
public  policy.  Smith  v.  Townsend,  109  Mass.  500. 

A  broker  who  is  employed  to  exercise  his  abilities  on  behalf 
of  his  principal  can  not,  without  his  principal's  knowledge, 
agree  to  represent  the  other  party  to  the  transaction;  such 
agreement  being  contrary  to  public  policy  and  unenforceable, 
though  the  original  principal  was  not  injured;  the  agent  in- 
tended no  wrong,  and  the  other  party  acted  in  good  faith.  Bass 
v.  Tolbert  (Tex.  Civ.  App.  '08),  112  S.  W.  1077. 

Where  an  agent  for  the  sale  of  land  agrees  with  another, 
that  the  latter  shall  purchase  it  for  their  joint  benefit,  and  con- 
ceals such  sale  from  his  principal,  the  contract  by  the  purchaser 
to  account  to  the  agent  for  the  profits  is  violative  of  law,  con- 
trary to  public  policy,  and  unlawful,  under  Civil  Code,  Section 
1067,  declaring  unlawful  that  which  is  contrary  to  law,  public 
policy,  or  good  morals.  Butler  v.  Agnew,  9  Cal.  App.  327,  99 
P.  395.  See  also  Sec.  522. 

A  broker  employed  to  procure  a  purchaser  of  real  estate 
for  a  specified  sum,  on  specified  terms,  for  an  agreed  commis- 
sion, interested  a  third  person  in  the  premises.  The  third  per- 
son requested  the  broker  to  do  nothing  further,  but  to  permit 
the  third  person  to  deal  directly  with  the  owner.  The  third 
person  promised  to  pay  the  broker  a  commission  if  he  pur- 
chased. The  said  third  person  subsequently  purchased  the  prem- 
ises from  the  owner.  Held,  that  the  broker  was  entitled  to  re- 
cover from  the  third  person  the  agreed  commission,  for  the  con- 
tract did  not  rest  on  an  immoral  consideration,  though  no  notice 


PLEADINGS,  PBACTICE,  ETC.  515 

thereof  was  given  to  the  owner.    Siegel  v.  Rosenzweig,  114  N.  Y. 
S.  179,  129  App.  Div.  547. 

Any  money  received  by  a  broker  employed  to  sell  land  from 
a  purchaser  belongs  to  the  principal,  since  an  agent  will  not 
be  permitted  to  derive  profit  from  the  subject  matter  beyond 
his  lawful  compensation.  Metschan  v.  Swensson  (Or.  Sup.  '09), 
99  P.  277 ;  Messer  R.  E.  &  Inv.  Co.  v.  Ruff,  64  S.  51,  185  Ala. 
236;  Harwi  v.  Morton,  186  P.  740,  —  Kan.  Sup.  — . 

A  broker  who  had  a  contract  for  an  agency  for  the  sale  of 
land  can  not  recover  damages  from  the  landowner  who  refused  to 
go  on,  where  the  broker  retained  moneys  collected  from  pur- 
chasers in  excess  of  the  expenses  incurred  and  the  damages  he 
suffered  by  reason  of  loss  of  time.  Whitcomb  v.  Sayer,  144  P. 
922,  82  Wash.  572. 

A  broker  to  sell  property  has  no  inherent  right  to  receive  part 
payment  or  earnest  money  from  the  purchaser.  Roseer  v.  Levi, 
210  S.  W.  314,  —  Tex.  Civ.  App.  — . 

Where  a  real  estate  owner  fixed  his  own  price  on  the  prop- 
erty and  employed  a  broker  to  secure  an  acceptance  of  his  prop- 
osition merely,  not  the  best  price  he  could  obtain,  he  can  not 
require  the  broker  to  account  for  money  received  by  him  from 
the  broker  for  the  other  party  on  a  division  of  the  latter 's  com- 
missions. Law  v.  Ware,  238  111.  360,  87  N.  E.  308. 

Under  an  ordinary  agency  for  the  sale  of  land  for  the  high- 
est price  possible,  it  is  contrary  to  public  policy  for  an  agent, 
without  the  consent  of  the  principal,  to  accept  compensation 
from  the  purchaser.  Aikin  v.  Poffenberger  (Tex.  Civ.  App. 
'09),  116  S.  W.  615;  Keitt  v.  Gresham,  174  S.  W.  884,  —  Tex. 
Civ.  App.  — ;  Twiss  v.  Herbst,  111  A.  201,  —  Conn.  Sup.  — . 

Where  one  engages  to  negotiate  for  the  purchase  of  land,  and 
is  informed  by  the  principal  that  he  desires  to  purchase  two  ad- 
joining tracts  to  make  one  property  of  them,  the  agent  can  not 
negotiate  a  purchase  on  his  own  account  of  one  of  the  tracts  and 
hold  it  against  the  interest  of  his  principal,  it  being  sufficient 
that  he  undertook  the  negotiations  and  held  a  situation  of  trust 
with  reference  to  procuring  the  land.  Rogers  v.  Genung  (1ST.  J. 
Err.  &  App.  '09),  74  A.  473. 

In  all  cases  the  principal  is  entitled  to  the  best  and  unbiased 
judgment  of  his  agent,  and  public  policy  forbids  the  agent  to 


516  AMEEICAN   LAW   EEAL   ESTATE   AGENCY. 

assume  a  relation  creating  a  departure  antagonistic  to  his  duty. 
Scott  v,  Kelso,  130  S.  W.  612,  62  Tex.  Civ.  App.  163;  Mass  v. 
Tolbert,  112  S.  W.  1077,  151  Tex.  Civ.  App.  437. 

Plaintiff,  a  real  estate  broker,  was  employed  by  defendant  to 
effect  an  exchange  of  certain  real  estate,  and  having  obtained  a 
prospective  purchaser,  accepted  an  employment  by  him  also  to 
effect  an  exchange.  The  exchange  having  been  accomplished, 
plaintiff  sued  defendant  for  commissions,  and  the  broker,  exam- 
ined as  a  witness  for  plaintiff,  testified  that  he  knew  that  the 
main  question  with  defendant  in  making  the  exchange  was  to 
pay  as  little  cash  as  possible,  and  that  it  was  the  witness's  duty 
to  get  an  exchange  for  defendant  with  the  least  cash  payment 
possible;  that  he  was  also  employed  by  the  other  man,  and  knew 
that  he  wanted  all  the  cash  he  could  get,  and  was  going  to  pay 
the  broker  to  get  all  the  money  possible  for  him;  held,  that  such 
evidence  indicated  a  conflict  of  duty  on  the  broker's  part  as  be- 
tween the  two  parties  to  the  exchange,  which  was  contrary  to 
public  policy,  and  constituted  a  complete  defense  to  defendant's 
liability  for  commissions.  Jacobs  v.  Beyer,  125  N".  Y.  Sup.  597, 
141  App.  Div.  49. 

It  is  a  rule  of  public  policy  that  an  agent  for  the  sale  of 
property  can  not,  at  the  same  time,  act  as  the  agent  for  the  pur- 
chase thereof,  and  thus  become  entitled  to  compensation  from 
both  vendor  and  purchaser.  This  rule  may  be  waived  by  an  ex- 
press agreement  between  the  parties,  but  such  agreement  can  not 
be  inferred  either  from  knowledge  of  the  fact  that  the  rule  had 
been  violated,  or  from  silence  or  failure  to  dissent  at  the  time,  or 
from  all  these  combined.  Nothing  short  of  clear  and  satisfactory 
proof  of  an  express  agreement  to  waive  the  rule  can  be  regarded 
as  sufficient  for  that  purpose.  Evans  v.  Rockett,  32  Pa.  Super. 
Ct.  365. 

Where  a  broker  sells  property  and  receives  an  advance  pay- 
ment of  $500  on  the  property,  and  the  purchasers  are  unable  to 
get  a  good  title  or  to  obtain  specific  performance,  and  the  broker 
has  not  paid  the  money  over  to  his  principal,  the  purchasers  can 
recover  the  money,  regardless  of  the  broker's  right  to  commis- 
sions. Gosslin  v.  Martin,  107  P.  957,  56  Or.  281. 

Where  a  realty  broker  was  to  receive  commissions  from  both 
parties,  though  one  knew  the  fact,  that  his  contract  to  pay  com- 


PLEADINGS,  PRACTICE,  ETC.  517 

mission  to  broker  was  against  public  policy  and  void,  so  that 
note  given  in  consideration  thereof  was  invalid.  Glenn  v.  Rice, 
162  P.  1020,  —  Cal.  Sup.  — . 

Contract  whereby  realty  brokers  having  exclusive  sale  of  land 
at  $50  an  acre  permitted  other  brokers  to  sell  to  one  of  their 
customers  if  they  would  pay  him  half  of  all  made  on  sale  for 
any  amount  above  price  at  which  land  was  listed,  was  not  against 
public  policy,  and  was  no  violation  of  the  broker's  duty  to  the 
owner.  Conway  v.  Burk,  171  N.  W.  84,  —  S.  D.  Sup.  — . 

Sec.  560.  Acquiescence  and  waiver,  and  effect  upon  broker's 
rights. 

Where  the  vendor  and  a  proposed  purchaser  disagree  as  to 
the  terms  of  sale,  and  the  broker,  who  is  present,  acquiesces  in 
the  inability  of  the  parties  to  complete  the  contract,  and  the 
owner  afterward  places  the  property  in  the  hands  of  another 
agent,  who  sells  it  on  practically  the  same  terms  to  the  pur- 
chaser secured  by  the  first  agent,  unless  fraud  or  bad  faith  be 
shown,  the  first  broker  is  not  entitled  to  compensation.  Girar- 
dieu  v.  Gibson,  122  Ga.  313,  50  S.  E.  91. 

Where  a  real  estate  broker  made  a  contract  for  the  sale  o.f 
land  which  contained  an  agreement  that  possession  should  be 
given  in  ninety  days,  and  this  agreement  was  beyond  his  au- 
thority, but  his  principal  conveyed  the  land  to  the  vendees, 
they  accepting  an  allowance  on  account  of  the  delay  beyond 
ninety  days  in  giving  possession.  Held,  that  by  making  settle- 
ment with  the  principal,  the  vendees  lost  their  right  of  action 
against  the  brokers  because  of  the  breach  of  an  unauthorized 
agreement.  Hopkins  v.  Everly,  150  Pa.  St.  117,  24  A.  624,  30 
Weekly  N.  Cases  393. 

An  owner  employed  a  broker  to  procure  a  purchaser  and 
agreed  to  pay  him  a  commission  on  the  purchaser  paying  more 
than  a  specified  sum;  a  purchaser  could  not  be  induced  to  pay 
more  than  that  sum;  the  owner,  with  the  knowledge  of  the 
broker,  made  the  sale  at  the  highest  price  obtainable;  there 
was  no  secret  dealing  between  the  owner  and  the  purchaser, 
and  the  broker  did  not  object  to  the  sale.  Held,  that  the  broker 
was  not  entitled  to  a  commission,  on  the  theory  that  there  was 


518  AMERICAN  LAW  KEAL  ESTATE  AGENCY. 

a  waiver  on  the  part  of  the  owner  of  the  stipulation  as  to  price. 
Ball  v.  Dolan  (S.  D.  Sup.  '08),  114  N.  W.  998.    See  also  Sec.  482. 

Where  M.,  who  was  to  receive  a.  commission  for  a  sale  of 
B.'s  land,  turned  over  the  sale  of  the  land  to  L.,  agreeing  that 
L.  should  have  the  commissions  therefor,  to  which  B.  consented 
before  a  sale  was  made,  L.,  on  selling  the  land,  was  not  entitled 
to  the  commissions  as  the  assignee  of  M.,  but  because  he,  with 
the  knowledge  and  consent  of  B.,  sold  the  land  after  M.  had 
waived  his  right  to  do  so.  Munson  v.  Mdbon,  135  Iowa,  335, 
112  N.  W.  775. 

Where  a  written  contract  employing  plaintiff  as  broker  to 
sell  defendant's  land  provided  for  a  certain  cash  payment  by 
any  purchaser  that  might  be  secured  and  fixed  the  price  at 
which  defendant  would  sell,  refusal  by  defendant  to  accept 
an  offer  to  buy  at  that  price  was  a  waiver  of  any  right  which 
defendant  might  otherwise  have  had  to  require  a  prospective 
purchaser  to  make  a  tender  in  cash  of  the  down  payment.  Mc- 
Dermott  v.  Mekonev  (Iowa  Sup.),  106  N.  W.  925,  115  N.  W.  32, 
139  Iowa,  292 ;  Moore  v.  Boehm,  91  N.  Y.  S.  125,  45  Misc.  622. 

Where  a  broker  is  authorized  to  procure  a  purchaser  of  land 
within  a  certain  time,  but  the  owner  waives  the  performance 
of  the  contract  within  the  time  agreed  and  accepts  the  services 
of  the  broker  and  treats  the  contract  as  in  force,  the  broker 
will  be  entitled  to  compensation  when  he  procures  a  purchaser. 
Ice  v.  Maxwell,  61  W.  Va.  9,  55  S.  E.  899. 

K.  employed  land  brokers  to  procure  a  purchaser  for  his  land ; 
a  condition  of  the  employment  was  that  if  he  sold  the  land 
without  the  intervention  or  assistance  of  the  brokers  they  would 
not  be  entitled  to  commissions;  M.  sold  independently  of  the 
brokers,  although  before  negotiations  were  completed  the  bro- 
kers furnished  a  purchaser.  It  was  held  that  they  had,  by  the 
contract,  waived  their  rights,  and  were  not  entitled  to  a  com- 
mission. Robinson  v.  Kindley,  36  Kan.  157,  12  Pac.  587. 

Where  a  landlord  accepted  the  waiver  of  a  tenant's  privi- 
lege of  renewal,  procured  by  his  agent  from  the  tenant,  and 
acted  upon  the  same,  he  was  estopped  to  deny  the  agent's  au- 
thority in  the  premises.  Madison  Ave.  v.  Osgood,  18  N.  Y.  S. 
126. 

Where  a  broker  was  told  by  the  principal  that  he  must  look 


PLEADINGS,  PRACTICE,  ETC.  519 

to  the  intending  purchaser  for  his  compensation,  he  can  not 
recover  his  commissions  from  the  principal.  King  v.  Benson, 
22  Mont.  256,  56  P.  280.  Compare  Sec.  19. 

Under  an  agreement  to  pay  a  broker  a  commission  for  pro- 
curing a  purchaser  within  a  specified  time,  to  earn  the  com- 
mission he  must  produce  within  that  time  a  customer  ready, 
able  and  willing  to  purchase  on  the  stipulated  terms;  but  the 
commission  is  earned  if  the  customer  is  willing  to  purchase  on 
different  terms,  and  the  variance  is  waived  by  the  principal, 
or  if  a  suitable  customer  is  produced,  but  not  within  the  time 
limited,  owing  to  a  delay  caused  by  the  principal,  there  being 
no  implied  promise  to  pay  a  commission  if,  at  a  time  subse- 
quent to  the  time  limit,  the  property  is  sold  to  one  introduced 
by  the  broker.  Brown  v.  Mason  (Cal.  Sup.  '09),  99  P.  867. 

Where  a  broker  employed  to  procure  a  purchaser  attempted, 
after  the  expiration  of  the  time  fixed  for  performance,  to  find 
a  purchaser,  and  the  owner,  knowing  thereof,  made  no  objec- 
tion, but  encouraged  him  to  proceed,  and  a  purchaser  was  pro- 
cured, the  owner  waived  the  time  limit  and  the  broker  was 
entitled  to  his  commissions.  Stiewel  v.  Lolly,  89  Ark.  195,  115 
S.  W.  1134.  See  also  Sec.  42. 

Where  a  principal  knows  that  his  agent  is  representing  both 
parties,  it  is  not  necessary  to  disclose  such  fact  to  the  prin- 
cipal to  entitle  the  broker  to  his  commissions.  Arthur  v.  Porter 
(Tex.  Civ.  App.  '09),  116  S.  W.  127. 

Where  a  contract  declared  on  and  exhibited  with  the  com- 
plaint, in  an  action  by  a  broker  for  commissions,  did  not  con- 
tain a  time  limit  for  performance,  but  referred  to  a  power  of 
attorney  executed  by  the  owner  to  the  broker  which  contained 
a  time  limit,  and  the  owner  admitted  the  execution  of  the  con- 
tract, but  alleged  that  it  was  not  in  force  at  the  time  of  the 
sale,  the  question  whether  the  contract  was  in  force  at  that  time 
was  in  issue,  and  under  it  the  broker  might  prove  a  waiver  by 
the  owner  of  the  time  limit  in  the  power  of  attorney.  Stiewel 
v.  Lolly,  89  Ark.  195,  115  S.  W.  1134. 

A  contract  provided  that  certain  land  should  be  left  with 
plaintiff  for  sale  for  two  weeks,  and  until  written  notice  of 
withdrawal.  The  broker  failed  to  sell  the  land  within  the  two 
weeks,  and  verbally  acquiesced  with  the  owner  that  his  time  to 


520  AMERICAN'  LAW    REAL   ESTATE   AGENCY. 

make  a  sale  had  expired,  and  stated  that  there  was  no  use  in 
destroying  the  contract,  which  defendant  wanted  to  do,  and 
neither  party  acted  further  thereunder.  Held,  that  the  broker 
had  waived  written  notice  of  withdrawal,  thereby  terminating 
the  contract  at  the  expiration  of  the  said  two  weeks.  Bird  v. 
Webber  (Okla.  Sup.  '09),  101  P.  1052. 

The  right  to  recover  for  services  in  procuring  purchasers 
for  lands  was  not  waived  by  the  fact  that  after  plaintiffs  found 
that  defendants  did  not  own  or  control  the  land,  they  demanded 
a  return  of  the  money  advanced  by  the  purchasers.  Peavey  v. 
Greer  (Minn.  Sup.  '09),  121  N.  W.  875. 

Where  a  broker  performed  services  towards  leasing  prop- 
erty, but  before  he  had  leased  it,  he  told  the  owner  that  he 
would  charge  him  nothing  for  his  services,  he  was  entitled  to 
no  compensation,  either  for  subsequent  or  the  prior  services, 
whether  the  prior  services  were  rendered  without  a  contract 
therefor,  or  under  the  contract  to  effect  the  lease,  in  which 
latter  case  no  commission  would  be  earned  till  the  lease  was 
effected.  Strickland  v.  Fairfax  (Va.  Sup.  '09),  65  S.  E.  477. 

The  commissions  of  a  broker  who  acquiesced  in  the  reduc- 
tion of  the  price  from  the  original  terms  is  based  on  the  ac- 
tual price  received.  Bauersmith  v.  Min.,  etc.,  Co.,  146  Fed.  95. 

A  broker  had  attempted  to  exchange  defendants'  property, 
and  had  announced  that  he  expected  two  and  one-half  per  cent, 
commission.  Less  than  a  week  afterward,  the  deal  having  fallen 
through,  the  broker  wrote  to  defendants:  "Now,  I  have  a  trade 
for  you  and  am  willing  to  give  you  all  there  is  in  it,"  and  stated : 
"I  will  give  you  his  place  clear  and  $2,000  cash  for  your  place 
clear.  *  *  *  I  would  want  possession  of  your  place  this 
spring,  and  you  could  have  possession  of  the  other."  The  place 
referred  to  belonged  to  the  broker's  brother  in  another  State, 
who  wished  to  move  to  the  residence  of  the  broker,  and  the 
broker  had  no  interest  in  the  land,  and  nothing  to  give  in  the 
transaction  other  than  his  commissions.  In  a  subsequent  letter 
the  broker  said:  "I  am  willing  to  give  you  all  there  is  in  it,  as 
we  would  rather  have  our  holdings  here,"  and  ''should  I  get 
the  place  I  would  prefer  it  not  rented  until  my  brother  comes 
and  decides  what  he  wants  to  do. "  Held,  that  the  letters  showed 
that  the  broker  was  not  acting  for  defendants  but  was  either 


PLEADINGS,  PRACTICE,  ETC.  521 

acting  for  himself  or  for  his  brother  and  proposed  to  waive  his 
commissions  if  the  exchange  were  consummated.  Big  Four  Realty 
Co.  v.  Clark  (Mo.  App.  '09),  123  S.  W.  95. 

If  owner  was  dissatisfied  with  purchasers  procured  by  broker 
he  should  have  notified  broker,  or  have  declined  to  enter  into  a 
contract  with  purchasers,  but  having  accepted  the  purchasers 
after  being  misled  by  brokers,  he  is  bound  to  pay  broker  a  com- 
mission. U.  S.  Farm  Loan  Co.  v.  Darter,  183  P.  696,  —  Cal. 
App.  — . 

Where  broker's  agreement  to  sell  land  was  completed  when 
owner  told  him  he  would  pay  a  less  commission  than  that 
agreed  on,  and  no  more,  and  all  that  remained  to  be  done  was  to 
put  the  agreement  of  sale  with  the  purchaser  procured  in  writing, 
the  broker  did  not  waive  his  right  to  the  first  agreed  commission 
b}1"  merely  remaining  silent.  Gardner  v.  Buschler,  111  A.  589, 
—  Conn.  Sup.  — . 

The  owner's  statement  to  the  brokers  that  the  latter  had  earned 
their  commission,  made  while  negotiations  were  still  pending  with 
the  broker's  customer,  expressed  no  intention  to  relinquish  their 
right  to  resist  payment  of  the  commission  if  the  customer  was 
not  willing  to  take  the  property  under  the  terms  stated  to  the 
broker,  and  therefore  did  not  waive  that  right.  Brown  &  Fen- 
wick  R.  E.  &  Ab.  Co.  v.  Narks,  226  S.  W.  55,  —  Mo.  App.  — ; 
Meachem  v.  Baker,  226  S.  W.  967,  —  Mo.  App.  — ;  Wetter  v. 
Phillip  Gross  Realty  Co.,  180  K  W.  927,  —  Wis.  Sup.  — . 

Sec.  561.    Advertising  and  advertisements. 

In  a  contract  to  pay  for  the  services  of  a  real  estate  broker 
in  " showing  and  advertising"  land,  the  term  "advertising" 
must  be  construed  as  meaning  the  publication  of  a  notice  in 
a  newspaper,  or  otherwise,  of  the  fact  that  the  land  is  for  sale. 
Darst  v.  Doom,  38  111.  App.  397. 

An  advertisement  put  upon  land  as  for  sale  by  an  agent  is 
insufficient  to  imply  power  in  such  agent  to  make  a  sale  thereof, 
when  the  owner  denies  conferring  such  power.  Mortimer  v.  Corn- 
well,  1  Hoffm.  (N.  Y.)  Ch.  351.  The  expenses  incurred  by  a 
broker  in  advertising  and  selling  a  client 's  land,  are  not  elements 
of  damages,  in  an  action  to  recover  commissions  alleged  to  have 
been  lost  by  his  client's  refusal  to  convey  to  the  purchasers 


522  AMERICAN  LAW  EEAL  ESTATE   AGENCY. 

whom  the  broker  had  obtained.  Burnett  v.  Edling,  19  Tex. 
Civ.  App.  711,  48  S.  W.  775.  See  also  Sec.  309.  A  broker's 
advertisement  which  brought  a  purchaser,  who  bought  from 
the  principal,  entitled  the  broker  to  his  commissions.  Kilbourn 
v.  King,  6  D.  C.  310;  Tyler  v.  Parr,  52  Mo.  249;  Bell  v.  Kaiser, 
50  Mo.  150;  Anderson  v.  Cox,  16  Neb.  10,  20  N.  W.  10;  Kiernan 
v.  Bloom,  86  N.  Y.  S.  899,  91  App.  Div.  429;  Jackson  v.  Car- 
rick,  25  Weekly  Not.  Gas.  (Pa.),  132;  Mallom  v.  Barrett,  192 
Mass.  552,  78  N.  7.  560;  Lord  v.  U.  S.  Transp.  Co.,  128  N.  Y. 
Sup.  451,  143  App.  Div.  437 ;  Maloom  v.  Barrett,  78  N.  E.  560, 
192  Mass.  552. 

In  another  case,  where  a  sale  was  made  by  the  principal  to 
one  who  derived  his  information  that  the  farm  was  for  sale  from 
the  broker's  advertisement,  he  was  denied  a  recovery  of  commis- 
sions. Charlton  v.  Wood,  11  Heisk.  (Tenn.),  19. 

A  real  estate  broker  suing  for  commissions  may  testify  that 
he  advertised  the  land  in  a  certain  newspaper,  no  effort  being 
made  to  prove  in  this  manner  the  terms  or  contents  of  the  ad- 
vertisement. Yarborough  v.  Creager  (Tex.  Civ.  App.  '03),  77 
S.  W.  645. 

Where  a  broker,  noticing  defendant's  advertisement  of  his 
house,  wrote  defendant  that  he  had  prospect  for  such  property, 
and  requested  terms,  and  after  defendant  sent  the  terms,  such 
broker  wrote  owner  of  his  prospects  concerning  the  same,  but 
was  informed  that  the  prospect  was  not  interested ;  held,  that  where 
the  prospect  thereafter  was  interested  in  the  property  by  an  ad- 
vertisement of  the  owner  and  purchased  it,  the  negotiations  being 
conducted  between  the  principals,  the  broker  was  not  entitled  to 
any  commission.  Raynor  v.  ReinJiard,  180  N.  Y.  Sup.  690. 

Sec.  562.    Accord  and  satisfaction. 

Where  there  was  a  bona  fide  contention  between  a  broker  and 
his  principal  as  to  whether  the  broker  should  be  charged  with 
the  loss  of  a  certain  sum,  and  the  broker  retains  and  uses  a 
check  from  the  principal  for  the  commissions  due  him,  less  said 
loss,  expressed  to  be  "in  full  settlement,"  an  accord  and  satisfac- 
tion is  established,  which  is  a  valid  defense  to  an  action  by  the 
broker  for  the  balance  of  his  commissions.  Vorhis  v.  Elias,  56 
N.  Y.  S.  134. 


PLEADINGS,  PRACTICE,  ETC.  523 

Finding  that  broker's  acceptance  of  a  check  given  for  com- 
missions stated  on  its  face  "in  full  of  all  demands/'  did  not  con- 
stitute an  accord  and  satisfaction;  held,  sustained  by  the  evi- 
dence, showing  concealment  by  the  owner  as  to  whom  he  sold  the 
property,  and  indicating  bad  faith  on  the  part  of  the  owner  to 
deprive  the  broker  of  his  commission.  Elser  v.  Hughes,  183  111. 
App.  18. 

Sec.  563.    Breach  of  contract. 

If  a  sale  of  land  by  the  owner  effects  a  breach  of  the  contract 
with  the  agent,  an  action  by  the  latter  should  be  based  on  such 
breach,  and  not  on  a  performance  of  the  contract.  Metzer  v. 
Wyatt,  41  111.  App.  487;  Alder  son  v.  Houston,  96  P.  884,  154 
Cal.  1. 

Where  a  party  under  a  contract  is  to  secure  for  a  second 
party  options  on  certain  properties,  and  the  second  party  di- 
rects him  not  to  proceed  with  reference  to  securing  an  option 
on  one  of  the  properties,  this  is  a  breach  of  the  contract  for 
which  the  second  party  is  liable  in  damages.  Worthington  v. 
McGarry,  149  Ala.  251,  42  S.  988.  A  contract  giving  an  agent 
the  exclusive  authority  to  find  a  purchaser  for  a  farm  within 
a  given  time,  but  not  negativing  the  right  of  the  principal  to 
sell  the  property  himself,  is  not  breached  by  a  sale  by  the  owner 
at  public  auction,  through  the  medium  of  an  auctioneer  acting 
under  his  immediate  direction.  Ingold  v.  Symonds,  134  Iowa, 
206,  111  N.  W.  802. 

The  broker's  right  to  a  commission  is  not  affected  by  a  sub- 
sequent breach  by  either  party  not  caused  through  his  fault. 
Parker  v.  Walker,  86  Tenn.  566,  8  S.  W.  391 ;  Hannon  v.  Moran, 
71  Mich.  261,  38  N".  W.  909 ;  Tilton  v.  James  S.  Gate  Sons  Co., 
(Wis.  Sup.  '09),  121  N.  W.  331;  Hayes  v.  McArs,  131  N.  W. 
535,  166  Mich.  198.  Where  the  contract  employing  a 
broker  to  procure  a  purchaser  stipulates  that  commissions  should 
be  paid  only  when  a  sale  is  effected,  the  broker  is  not  entitled  to 
commissions  unless  a  sale  is  effected,  though  he  may  be  entitled 
to  damages  for  the  wrongful  act  of  the  owner  in  preventing 
a  sale.  McDermott  v.  Mahoney  (Iowa  Sup.  '08),  115  N.  W.  32, 
139  Iowa,  292;  Boddy  v.  Brummett  &  Ellis  (Tex.  Civ.  App.  '08), 
110  S.  W.  532. 


524  AMERICAN  LAW   REAL  ESTATE  AGENCY. 

A  real  estate  agent  who  has  obtained  a  purchaser  for  prop- 
erty placed  in  his  hands  to  be  sold  at  a  certain  price,  the  sur- 
plus to  go  to  the  agent  as  his  commission,  can  not  recover  for 
a  breach  of  the  owner's  contract  to  convey  the  property  a  sum 
paid  to  the  owner  to  induce  him  to  comply  with  the  contract, 
in  addition  to  the  commission  he  would  have  received  had  the 
sale  been  consummated.  Cornell  v.  Hanna  (Kan.  App.  '98),  53 
P.  790. 

Where  plaintiff,  desiring  to  purchase  a  certain  tract  of  land, 
went  to  real  estate  agents,  and  they  informed  him  they  had  a 
letter  from  the  owner  in  which  she  offered  the  tract  at  $1.700, 
and  that  they  would  endeavor  to  procure  it  for  him  for  $1,760, 
$100  to  be  paid  down,  and  the  balance  to  be  paid  as  soon  -as 
the  deed  could  be  procured;  but  when  the  owner  was  informed 
of  the  transaction  she  refused  to  take  less  than  $2,000 ;  the  real 
estate  agents,  having  acted  in  good  faith  and  done  all  in  their 
power  to  procure  the  title  of  the  land,  were  liable  only  for  the 
return  of  the  $100  paid,  and  not  for  damages  for  a  breach  of 
the  contract.  Kroeger  v.  Good,  13  Idaho,  184,  89  P.  632. 

In  action  for  damages  for  revocation  of  authority  to  sell 
land,  nothing  more  than  nominal  damages  can  be  recovered, 
where  the  agent  fails  to  show  that  he  could  have  made  a  sale 
on  the  principal's  terms.  Mulligan  v.  Owen,  123  Iowa,  285,  98 
N.  W.  792. 

Where  a  firm  of  two  members  contracted  to  manage  and  sell 
lots  of  a  corporation  at  a  town  other  than  that  at  which  the 
partners  resided,  the  fact  that  the  business  was  carried  on  at 
the  town  where  the  lots  are  located  by  only  one  of  the  part- 
ners, was  not  a  breach  of  the  contract.  Albany  Land  Co.  v. 
Bickel,  162  Ind.  222,  70  N.  E.  158.  See  also  Sec.  630. 

Where  an  owner  who  had  granted  to  a  real  estate  broker  the 
exclusive  agency  for  the  sale  of  land  for  a  specified  period 
sold  the  timber,  which  was  the  most  valuable  part  of  the  land 
and  thereby  practically  prevented  the  sale  of  the  land  according 
to  the  terms  of  the  contract,  the  broker  could,  without  waiting 
for  the  expiration  of  the  contract,  sue  for  the  breach.  Hunter  v. 
Wewtcnee  Land  Co.,  97  P.  494,  50  Wash.  438. 

A  broker,  in  an  action  for  commissions,  could  not  recover  for 
damages  for  breach  of  his  contract  of  employment  without  plead- 


PLEADINGS,  PRACTICE,  ETC.  525 

ing  such  breach.    Knudson  &  Richardson  v.  Laurent,  140  N.  W. 
392,  159  Iowa,  189. 

Sec.  564.    Correspondence. 

Where  a  firm  of  real  estate  agents  sends  a  letter  to  a  land  owner 
enclosing  their  business  card  and  informing  him  what  the  busi- 
ness of  the  firm  is,  and  also  inquiring  whether  the  land  is  in  the 
market  and  its  price,  and  the  owner  immediately  answers,  giving 
the  price  of  the  land,  the  terms  and  conditions  of  sale,  'and  the 
amount  of  commissions  which  he  is  willing  to  allow  to  the  real 
estate  agents  for  selling  it,  and  they  immediately  commence  to 
act  as  the  agents  of  the  land  owner  in  trying  to  procure  a  pur- 
chaser of  the  land,  they  are  his  agents,  iand  when  they  find  a 
purchaser  ready  to  purchase  the  land  upon  the  terms  and  condi- 
tions prescribed,  and  sell  the  land  to  him,  they  have  earned  their 
commissions.  Stephens  v.  Scott,  43  Kan.  285,  23  P.  555 ;  Imper- 
ato  v.  Wasboe,  93  N.  Y.  S.  489;  Rodman  v.  Manning  (Or.  Sup. 
'09 )  99  P.  657,  1135;  Ispherding  v.  Wolf,  36  Ind.  App.  250,  75 
N.  E.  598;  Getzilsohn  v.  Donnett,  98  N.  Y.  S.  213,  56  Misc.  164; 
Montgomery  v.  Amster  (Tex.  C.  A.  '09),  122  S.  W.  307;  Pattratz 
v.  Piper,  145  N.  W.  265,  95  Neb.  145;  Shaff  v.  Ash,  145  N.  W. 
271,  95  Neb.  255;  a  person  dealing  with  a  real  estate  agent,  with 
knowledge  that  the  agent's  authority  rests  on  correspondence  be- 
tween him  and  his  principal,  must  ascertain  the  extent  of  the 
agent's  authority,  and  is  bound  by  the  restrictions  thereof. 
Strong  v.  Ross,  33  Ind.  App.  586,  71  N.  E.  918. 

Real  estate  brokers  wrote  the  owner  of  a  lot  that 
they  had  a  customer  therefor  at  a  price  named,  and  asked 
for  an  answer,  and  in  reply  to  the  owner's  answer  asked  his  lowest 
price  and  stated  that  they  had  a  client  for  the  lot;  the  owner 
answered  naming  his  price,  to  which  the  brokers  replied  that 
their  client  deemed  the  price  too  high,  but  subsequently  wrote 
that  they  were  working  to  get  him  up  to  the  owner's  price,  on 
condition  that  a  second  mortgage  be  paid  off,  and  asked  the 
owner  to  come  to  the  city;  the  owner  did  not  answer  the  letter 
nor  come  to  the  city,  but  the  brokers  again  wrote  that  their  client 
would  pay  the  owner's  price  over  existing  mortgages,  to  which 
the  owner  answered  accepting,  providing  that  they  did  business  at 


526  AMERICAN   LAW    REAL   ESTATE   AGENCY. 

once,  whereupon  the  brokers  telegraphed  or  wrote  the  owner  to 
come  to  their  office  on  a  day  stated,  but  this  the  owner  did  not 
do.  Held,  not  to  constitute  a  contract  of  employment.  Lotz  v. 
Levy,  104  N.  Y.  S.  1058,  120  App.  Div.  477.  Correspondence 
between  defendant  and  the  owner  respecting  defendant 's  author- 
ity and  the  nature  of  his  dealings  with  the  owner  was  admissible, 
not  as  declarations  of  third  persons  against  plaintiff,  but  as 
tending  to  show  the  authority  given  defendant  by  the  owner,  and 
what  he  did  thereunder.  Wefel  v.  Stillman  (151  Ala.  249),  44 
S.  203.  On  the  issue  as  to  whether  a  loan  broker  was  the  agent 
of  the  defendant  in  negotiating  a  loan  for  him,  or  the  agent  of 
plaintiff  company  which  made  the  loan,  correspondence  between 
the  broker  and  the  plaintiff's  manager,  relative  to  defendant's 
loan  and  the  requested  extensions  thereof,  and  concerning  other 
loans  made  by  plaintiff  through  the  broker,  is  admissible  in  evi- 
dence, and  the  question  is  for  the  jury.  Jesson  v.  Texas  Land 
&  Loan  Co.  3  Tex.  Civ.  App.  25,  21  S.  W.  624 ;  Holliday  v.  Mc- 
Williams,  76  Neb.  324,  107  N.  W.,  578 ;  Bradley  v.  Bower  (Neb. 
Sup.. '04),  99  N.  W.  490;  Hardwick  v.  Marsh,  130  S.  W.  524,  96 
Ark.  23. 

Sec.  565.    Advances. 

The  fact  that  a  broker  employed  to  sell  land  advanced  the 
price  to  the  purchaser  did  not  make  him  the  purchaser's  agent. 
Goodson  v.  Embleton,  106  Mo.  App.  77,  80  S.  W.  22;  Lawson 
v.  Thompson,  10  Utah,  462,  37  P.  732.  A  broker  negotiated  a 
sale  of  plaintiff's  land  to  defendant,  but  had  the  deed  made  out 
to  a  third  person,  who  afterwards  conveyed  to  defendant ;  a  few 
weeks  after  the  sale  the  defendant  agreed  to  let  the  broker  sell 
the  land  for  him  at  an  advance,  the  profits  to  be  equally  divided 
between  them;  plaintiff  did  not  know  at  the  time  of  the  sale 
that  defendant  was  the  purchaser,  and  there  was  then  no  arrange- 
ment or  understanding  between  defendant  and  the  broker  as  to 
any  resale  of  the  property  or  division  of  the  profits.  Held,  that 
there  was  nothing  in  the  transaction  in  fraud  of  plaintiff.  Glover 
v.  Layton,  145  111.  92,  34  N.  E.  53. 

Bee.  566.    The  borrower. 

A  company  which  is  to  receive  a  commission  from  the  borrower 
for  procuring  a  loan,  and  which  makes  out  all  the  papers  without 


PLEADINGS,  PRACTICE,  ETC.  527 

knowing  from  whom  the  loan  is  to  be  obtained,  and  before  sub- 
mitting them  to  the  lender,  is  the  agent  of  the  borrower  in 
procuring  the  loan.  Land  Mtge.  etc.  Co.  v.  Preston,  119  Ala. 
290,  24  S.  707;  Hammill  v.  American,  etc.  Mtge.  Co.,  127  Ala. 
90,  28  S.  558.  A  broker  who  negotiated  a  loan  and  received  his 
commissions  from  the  borrower,  taking  a  note  payable  at  his 
office  to  the  lender,  is  not  authorized  to  receive  payments  on  such 
note.  Englerd  v.  White,  92  Iowa,  97,  60  N.  W.  224.  See  also 
Sees.  255  and  257. 

Sec.  567.    Acceptances. 

Where  one  wrote  across  a  draft  "accepted"  in  the  name  of 
his  principal,  by  himself  as  agent,  but  which  acceptance,  though 
authorized  in  fact,  did  not  in  law  bind  the  principal,  it  was  held 
that  unless  the  agent  used  the  name  of  his  principal  without 
authority  in  fact,  he  could  not  be  held  personally  bound.  Walker 
v.  Bank  of  State  of  N.  Y.,  5  Seld.  (N.  Y.)  582 ;  Duncan  v.  Niles, 
32  111.  532.  Where  defendant  wrote  plaintiff  offering  to  pay  him 
ten  per  cent,  commissions  for  sales  of  land  made  for  defendant 
at  a  specified  price  to  persons  obtained  by  plaintiff  that  defendant 
had  no  agreement  with,  and  plaintiff  immediately  began  to  search 
for  purchasers  whom  he  succeeded  in  procuring,  his  acts  consti- 
tuted a  sufficient  acceptance  of  the  offer.  Brown  v.  Smith,  113 
Mo.  App.  59,  87  S.  W.  556.  The  performance  of  work  by  real 
estate  agents  in  pursuance  of  an  employment  to  sell  land,  when 
at  once  brought  home  to  the  knowledge  of  their  employer,  is  an 
acceptance  of  the  contract  of  employment.  Arnold  v.  Nat.  Bk.  of 
Waupaca,  126  Wis.  362,  105  N.  W.  828,  3  L.  R.  A.  N.  S.  385. 
When  a  party  submits  to  another,  through  the  mail,  a  proposition 
of  purchase  or  sale,  the  receiver  of  the  proposition  has  the  right, 
within  a  reasonable  time  and  before  it  is  withdrawn,  to  accept 
by  a  writing  deposited  in  the  postoffice,  duly  stamped,  ready 
for  carriage  and  delivery,  and  such  an  acceptance  binds  the 
proposer  of  the  contract  from  the  time  the  deposit  is  made  in 
the  postoffice,  whether  it  be  delivered  or  not.  Scottish  American 


528  AMERICAN  LAW   BEAL  ESTATE  AGENCY. 

Mtge.  Co.  v.  Davis,  96  Tex.  504,  74  S.  W.  17,  18;  Dotson  v.  Mil- 
likean,  27  App.  D.  C.  500,  judg.  aff.,  28  Sup.  Ct.  489,  209  U.  S. 
237,  52  L.  Ed.  768.  Where  an  owner  of  real  estate  asks  a  real 
estate  broker  "to  get  a  deal,"  it  is  not  necessary  for  the  real  es- 
tate broker  to  assent  in  words,  if  he  procures  a  purchaser  he 
makes  a  contract  by  performance.  Lamb  v.  Prettyman,  33  Pa. 
Super.  Ct.  190.  Where  defendant  sent  to  plaintiff  a  power  of  at- 
torney for  the  sale  by  him  as  agent  of  defendant's  real  estate,  if 
an  acceptance  was  necessary  it  was  accepted  by  a  letter  from 
plaintiff  stating  that  he  had  a  buyer  for  the  place  and  that  he 
would  leave  on  a  day  named  with  him,  for  the  purpose  of  looking 
through  the  property.  Luckett  Land  &  Em.  Co.  v.  Brown,  118 
La.  943,  43  S.  628. 

The  mere  approval  of  a  contract  by  a  broker,  where  it  sub- 
stantially differs  from  that  which  he  was  employed  to  make,  can 
not  of  itself  be  held  to  be  an  acceptance  of  performance  of  the 
broker's  obligations.  Rieger  v.  Bigger,  29  Mo.  App.  421. 

In  an  action  by  the  grantor  of  realty  to  set  aside  a  sale,  on 
the  ground  that  the  agent  employed  by  her  to  procure  a  pur- 
chaser, in  fact  purchased  the  property,  while  she  thought  the  sale 
was  being  made  to  another,  it  appeared  that  the  agent  had  in- 
duced her  to  sign  a  contract  of  purchase  with  such  other  party, 
the  agent  agreeing  to  execute  with  the  other  a  bond  accompany- 
ing a  mortgage  which  was  to  be  given  to  the  grantor;  subse- 
quently a  deed  was  given  running  to  the  agent;  the  bond  was 
signed'  by  the  agent  and  the  other,  and  the  mortgage,  signed  by 
the  agent  alone,  was  kept  by  him  for  the  purpose  of  record; 
after  the  grantor  learned  that  the  deed  ran  to  the  agent  she 
informed  him,  on  the  payment  of  the  interest  on  the  purchase 
money  mortgage  given  by  him,  that  she  would  put  the  money 
in  bank  until  she  got  her  property  back,  and  stated  that  she  was 
going  to  see  a  lawyer.  Held,  that  the  acceptance  of  the  money 
did  not  constitute  a  ratification  of  the  transaction.  Clark  v. 
Bird,  72  N.  Y.  S.  769,  66  App.  Div.  284.  See  also  Sees.  458,  618. 


PLEADINGS,  PBACTICE,  ETC.  529 

A  broker  wrote  the  owner  of  certain  property  asking  if  he 
would  give  him  a  short  time,  say  thirty  days,  in  which  to  effect 
a  sale  at  a  stated  price  on  the  usual  commission  basis,  to  which 
the  owner  replied  that  the  broker  had  made  a  mistake  as  to  the 
price,  which  was  $5,000,  and  then  added  that  he  was  not  anxious 
to  sell,  but  might  consider  a  cash  offer.  Held,  not  an  acceptance 
of  the  broker's  offer  of  his  services  so  as  to  constitute  a  contract 
of  employment,  under  the  rule  that  to  constitute  a  contract  the 
acceptance  must  agree  with  and  be  in  the  same  terms  as  the  offer. 
Henry  v.  Barker ,  118  P.  205,  61  Or.  276,  judg.  aff.  on  re.,  122 
P.  298,  61  Or.  276. 

Acceptance  by  the  principal  of  the  purchaser  is  conclusive  that 
he  is  able,  ready  and  willing  to  buy.  Handley  v.  Shaffer,  59  S. 
286,  177  Ala.  636 ;  Bailey  v.  Padgett,  70  S.  637,  195  Ala.  203. 

Where  defendant  applied  to  plaintiff  for  loan  "to  or  through" 
such  broker,  to  be  made  within  reasonable  time,  and  both  parties 
contemplated  securing  loan  from  Insurance  Co.  and  plaintiff 
never  attempted  to  make  loan  himself,  defendant  could  repudiate 
application,  if  not  accepted  by  Insurance  Co.  within  reasonable 
time.  Calvin  Phillips  <&  Co.  v.  Newoc  Co.,  172  P.  355,  —  Wash. 
Sup.  — . 

Where  broker  prepared  a  contract  to  sell  land,  which  required 
that  certain  party  was  to  pay  his  commission,  the  execution  of 
such  contract  was  a  sufficient  acceptance  thereof  by  the  broker. 
Eickmeier  v.  Geddes,  126  N.  E.  850,' —  Ind.  App.  — . 

Acceptance  by  the  seller  of  a  purchaser  furnished  by  the  broker 
dispenses  with  the  necessity  of  the  broker  showing,  in  an  action 
for  commissions,  that  the  purchaser  was  able,  ready  and  willing 
to  buy,  since  the  acceptance  is  taken  as  a  conclusive  admission  of 
that  fact.  De  Briere  v.  Yeend  Bros.  Realty  Co.,  86  S.  528,  — 
Ala.  Sup.  — . 

Sec.  568.    Conformity. 

Where  the  owner,  on  being  informed  by  the  broker  that  he 
has  sold  the  land  refuses  to  convey,  without  objecting  to  all  the 
terms  of  the  sale,  such  conduct  is  some  evidence  that  the  sale 
conformed  to  the  directions  given  to  the  broker.  Smith  v.  Keller, 
151  111.  518,  38  NT.  E.  250. 


530  AMERICAN  LAW   EEAL  ESTATE  AGENCY. 

Sec.  569.    Costs. 

Where  plaintiff,  when  she  sued  to  compel  specific  performance 
of  a  contract  to  convey  land,  made  by  defendant  with  her  as- 
signor, knew  who. owned  the  property  at  the  time  the  defendant 
undertook  to  contract  for  its  conveyance,  and  that  the  contract 
was  worthless,  she  was  unable  to  recover  the  costs  incurred  in 
litigation,  in  an  action  on  defendant's  warranty  of  authority  as 
agent  to  sell.  'Rowland  V.  Hall,  106  TS.  Y.  S.  55,  121  App. 
Div.  459. 

Sec.  570.    Conditions  precedent  to  right  to  commissions. 

A  proviso  in  a  broker's  contract  that  commission  shall  be 
payable  out  of  the  first  cash  payment  is  not  a  condition  precedent 
to  the  broker's  right  to  recover  his  commissions,  and  does  not 
mean  that  unless  there  is  a  cash  payment  there  are  to  be  no 
commissions.  Finch  v.  Guardian  Trust  Co.,  92  Mo.  App.  263. 
Hanna  v.  Espalla  (148  Ala,  313),  42  S.  443.  See  also  Sec.  501. 

The  principal  agreed  to  pay  the  broker's  commissions  for  sell- 
ing land  when  the  vendees  paid  a  certain  sum  and  gave  their 
notes  and  mortgage  for  the  balance.  The  vendees  executed  their 
note,  but  never  paid  the  money.  The  broker  was  not  entitled  to 
commissions.  McPhail  v.  Buett,  87  Cal.  115,  25  P.  266 ;  Ormsby 
v.  Graham,  123  Iowa.  202,  98  N.  W.  724. 

Where  a  contract  of  employment  makes  the  right  to  a  com- 
mission dependent  upon  the  payment  of  the  purchase  price,  the 
broker  can  not  recover  until  the  transaction  is  finally  consum- 
mated. Cremer  v.  Miller,  56  Minn.  52,  57  N.  W.  318 ;  West  v. 
Stoeckel,  6  Ohio  Dec.  (Rep.),  1082,  10  Am.  L.  Eec.  309;  Cham- 
bers v.  Armour,  83  S.  721,  —  Fla.  Sup.  — ;  Hartman  v.  Selling, 
189  P.  887,  —.Or.  Sup.  — ;  Murphy  v.  W.  &  W.  Live  Stock  Co., 
187  P.  857,  —  Wyo.  Sup.  — . 

Where,  in  an  action  by  a  broker  for  commissions  for  selling 
land,  plaintiff  relied  on  a  written  agreement  by  which  payment 
of  commissions  was  to  be  made,  "one-half  when  the  second  pay- 
ment of  building  loan  is  due  and  payable,  and  the  balance  imme- 
diately after  inclosure  payment  is  due  and  made,"  these  two 
events  were  conditions  precedent  to  plaintiff's  right  to  recover, 
and  should  have  been  pleaded  and  proved  on  the  trial.  Turner 
v.  Lane,  93  N.  Y.  S.  1083,  47  Misc.  387 ;  Jaupal  v.  Gold,  106  N. 
Y.  S.  891,  122  App.  Div.  401. 


PLEADINGS,  PBACTICE,  ETC.  531 

Where  a  broker  agrees  to  sell  land  upon  condition  that  the 
owner  shall  first  make  $500  out  of  the  sale,  the  broker  to  have 
the  rest  as  his  commission,  he  is  not  entitled  to  a  commission 
for  merely  finding  a  purchaser  upon  the  sale  to  such  purchaser 
falling  through  on  account  of  a  defect  in  the  title.  Seattle  Land 
Co.  v.  Day,  2  Wash.  451,  27  P.  74;  Hess  v.  Eggers,  78  N.  Y.  S. 
1119,  38  Misc.  726,  affirming  76  N.  Y.  S.  980,  37  Misc.  845. 
Contra,  Putzel  v.  Wilson,  2  N.  Y.  S.  47,  49  Hun,  220. 

A  stipulation,  that  the  principal  is  to  pay  the  broker  a  cer- 
tain commission  for  negotiating  a  loan,  when  made,  and  the 
loan  fails  by  reason  of  a  defective  title,  does  not  make  the  right 
to  a  commission  dependent  on  the  making  of  the  loan.  Fitz- 
patrick  v.  Gilson,  176  Mass.  477,  57  N.  B.  1000.  See  also  Sec.  501. 

Where  a  broker's  contract  for  commission  provided  that  the 
amount  sued  for  was  payable  out  of  the  last  cash  payment, 
such  payment  constituted  a  condition  precedent  to  any  liability 
on  defendant's  part  to  pay  such  sum  to  plaintiff,  and  hence  an 
allegation  in  plaintiff's  complaint  that  the  sum  sued  for  "be- 
came due"  on  a  given  date,  was  not  a  sufficient  allegation  that 
the  condition  precedent  had  happened.  Nekarda  v.  Presberger, 
107  N.  Y.  S.  897,  123  App.  Div.  418. 

If  the  right  to  a  commission  is  dependent  on  payment  of 
the  price  by  the  purchaser,  the  broker  must  show  either  pay- 
ment or  a  tender  thereof.  Burnett  v.  Edling,  19  Tex.  Civ. 
App.  711,  48  S.  W.  775 ;  Fisk  v.  Soule,  87  Cal.  313,  25  P.  430. 
Under  a  contract  providing  for  the  payment  of  commissions 
"at  the  time  of  the  payment  by  said  purchaser,"  the  broker 
was  entitled  to  a  commission  on  a  partial  payment,  payment 
of  commissions  not  being  dependent  on  the  payment  of  the 
entire  purchase  price,  though  the  principal,  a  part  owner,  re- 
ceived no  part  of  the  said  payment.  Frank  v.  Bonnevie,  20 
Colo.  App.  164,  77  P.  363.  See  also  Sees.  297,  470. 

Where  land  is  sold  for  a  price  payable  in  installments,  and 
the  commission  is  to  be  paid  as  each  installment  is  received, 
if  the  purchaser  defaults  after  making  certain  payments,  and 
the  land  is  sold  at  judicial  sale,  and  bought  in  by  the  prin- 
cipal in  full  satisfaction  of  the  price,  the  broker  is  entitled  to 
full  commissions.  Crane  v.  Eddy,  191  111.  645,  61  N.  E.  431,  85 
Am.  St.  K.  284. 


532  AMERICAN  LAW   EEAL   ESTATE  AGENCY. 

Where  the  parties  were  familiar  with  the  facts,  and  defend- 
ants were  notified  that  plaintiffs  would  claim  their  commis- 
sions, a  demand  before  suit  was  unnecessary.  Clifford  v.  Meyer, 
6  Ind.  App.  633,  34  N.  E.  23.  In  some  contracts  the  delivery 
of  the  deed  is  made  a  condition  precedent  to  the  broker's  being 
entitled  to  his  commissions.  Beebe  v.  Roberts,  3  E.  D.  Smith 
(N.  Y.),  194.  See  also  Sec.  536. 

Where  an  authorized  agent  agreed  to  sell  land,  subject  to 
the  approval  of  the  owners,  the  approval  of  the  owners  was 
necessary  to  constitute  a  contract  enforceable  by  either  party, 
as  the  purchaser  was  not  bound  to  accept  the  conveyance  of 
an  interest  of  only  one  owner.  Jacobson  v.  Hendricks  (Conn. 
Sup.  '10),  75  A.  85. 

A  broker  having  agreed  to  put  through  a  change  of  defend- 
ant's location  in  consideration  of  a  bonus,  he  was  required  to 
carry  the  transaction  to  a  successful  termination,  as  a  condition 
precedent  to  the  right  to  commissions,  and  the  same  having  been 
abandoned  because  of  defendant's  inability  to  comply  with  the 
terms  required,  the  broker  could  not  recover.  Holton  v.  Job  Iron 
&  Steel  Co.,  204  F.  947,  123  C.  C.  A.  269. 

A  broker  employed  to  procure  a  purchaser  on  specified  terms, 
who  produces  a  purchaser  who  enters  into  a  tentative  agreement 
with  the  owner  as  to  the  terms  of  sale,  but  who  does  not  per- 
form a  condition  precedent  to  the  taking  effect  of  the  contract, 
is  not  entitled  to  his  commission.  Nayl  v.  Small,  138  N.  W.  849, 
159  Iowa,  387. 

Under  a  contract  of  exclusive  agency  to  sell  a  parcel  of  a  large 
tract  of  land  at  a  stated  commission  per  acre,  and  providing  for 
withholding  parts  of  the  commission  until  payments  of  deferred 
instalments  of  the  price  of  parcels  sold  on  time,  the  commissions 
were  payable  out  of  the  proceeds  of  sale,  and  were  not  uncondi- 
tional obligations.  Mdllon  v.  Interstate  Inv.  Co.,  114  P.  167,  62 
Wash.  187. 

Where  a  contract  between  owners  of  land,  giving  the  agent  the 
right  for  a  specified  period  to  subdivide  land  into  lots  and  sell 
the  same,  accounting  to  the  owners  for  a  specified  amount  per 
foot,  and  taking  the  excess  for  his  services,  was  subsequently 
modified  by  a  provision  that  the  owners  should  cause  a  plat  of 
the  subdivision  to  be  approved  by  parties  named,  so  that  it  could 


PLEADINGS,  PBACTICE,  ETC.  533 

be  recorded  when  the  dedication  of  a  certain  street  had  been  ef- 
fected, whereupon  the  selling  agent  should  furnish  security  for 
the  faithful  performance  of  the  contract  as  modified.  Held,  that 
the  causing  by  the  owners  of  the  plat  to  be  approved  by  the  par- 
ties named  was  a  condition  precedent  to  the  furnishing  of  the 
security  by  the  selling  agent,  and  until  that  was  done  he  was  not 
in  default.  Eandle  v.  Washington  Loan  &  Trust  Co.,  45  App. 
D.  C.  505. 

Where  real  estate  broker  is  entitled  to  a  certain  sum  in  addition 
to  his  stipulated  commissions  only  in  case  the  contract  of  sale  is 
consummated  and  the  entire  purchase  price  paid,  or  in  the  event 
that  a  certain  sum  as  earnest  money  is  retained  as  liquidated 
damages,  under  the  terms  of  such  contract  of  sale,  and  neither 
of  such  events  happens,  he  is  entitled  to  recover  only  such  stipu- 
lated commission.  Strassheim  v.  Reuttinger,  198  111.  App.  258. 

Under  a  contract  between  real  estate  brokers  whereby  defend- 
ants agreed  to  pay  plaintiffs  a  part  of  a  commission  in  making 
a  second  mortgage  loan,  and  providing  that  the  amount  specified 
should  be  paid  plaintiffs  when  the  money  on  the  mortgage  was 
paid;  held,  that  the  right  of  the  plaintiffs  was  dependent  on  the 
making  of  the  loan,  as  a  condition  precedent,  and  that  they  could 
not  recover  under  such  contract  without  first  showing  that  the 
loan  was  in  fact  made.  Stein  v.  Emerman,  203  111.  App.  316. 

Where  a  rent  agent  enters  into  a  contract  of  lease  with  a  ten- 
ant, it  is  not  competent  to  engraft  on  terms  of  contract  stipula- 
tions as  to  commission  so  as  to  bind  owner,  as  such  stipulations 
are  foreign  to  the  subject-matter  of  lease,  and  do  not  concern  the 
parties  thereto.  Forrest  &  George  Adair  v.  Smith,  98  S.  E  224, 
23  Ga.  App.  290. 

Under  a  contract  whereby  defendant  agreed  to  pay  a  broker 
in  case  a  deal  or  trade  was  made  between  him  and  S.  a  specified 
sum,  the  broker  "to  accept  securities  for  same  that  I  receive 
from  S.",  the  broker  was  only  entitled  to  his  commission,  if  at 
all,  out  of  the  securities  received,  unless  defendant  was  at  fault 
in  failing  to  carry  out  the  contract  with  S.  Thompson  v.  Ryan, 
176  N.  W.  275,  mod.  opin.  on  re.,  174  N.  W.  15,  —  Iowa  Sup.  — . 


CHAPTER  II. 


SECTION. 

571.  Courts. 

572.  Equity. 

573.  Exceptions. 

574.  Forgery. 

575.  Loan  payable  in  gold. 

576.  Licenses. 

577.  Limitations  and  restrictions. 

578.  Broker  acting  as  a  mere  middle- 

man. 

578a.  Broker  masquerading  as  a  mid- 
dleman who  acquires  interests 
adverse  to  owner  forfeits  com- 
missions and  must  account  for 
ill-gotten  gains. 

579.  Unless  mistake  be  pleaded  and 

proved  each  purchaser  bound 
for  the  whole  commission. 

580.  "Immediate  notice"  means  in  a 

reasonable  time. 

580a.  The  word  "able"  in  statute  held 
to  mean  "financially  able." 


SECTION. 

581.  Principal  may  remain  neutral  as 

to  broker's  claim. 

582.  Proposition     inconsistent     with 

negative  to  prove. 

583.  Parol   contract  of  agent   binds 

unnamed    principal. 
583a.  Contracts    between    brokers    to 
share    commissions   exempted 
from  being  in  writing. 

584.  Broker  to  share  in  profits  for 

sales  not  a  partnership. 
584a.  Brokers  not  meeting  earlier  de- 
mands   not    precluded    from 
sharing   profits   when   paying 
share  of  note  when  due. 

585.  To    pay    commission    on    with- 

drawing   land     strictly    con- 
strued. 

586.  In  trying  to  effect  a  sale  of  real 

estate    party    may    extrava- 
gantly extol. 


Sec.  571.    Courts. 

Contracts  with  brokers  for  the  sale  of  real  property  are 
presumptively  entered  into  in  good  faith,  and  it  is  the  province 
of  the  courts,  in  administering  the  law  as  to  such  contracts, 
to  carefully  protect  the  interests  of  the  parties  according  to 
the  true  spirit  and  meaning  of  the  contracts.  C order  v.  O'Neill, 
176  Mo.  401,  75  S.  W.  764.  Where  two  parties  make  a  parol 
contract,  and  they  disagree  about  its  terms,  it  is  the  duty  of 
the  court,  in  an  action  arising  thereon,  to  explain  to  the  jury, 
when  requested,  the  legal  effect  of  each  party's  recollection  of 
the  terms  of  the  same.  Stewart  v.  Fowler,  37  Kan.  677,  15 
P.  918.  Fulfillment  of  an  owner's  contract  entered  into  by  a 
landowner  for  the  payment  of  commissions  will  not,  where  it  was 
534 


PLEADINGS,  PEACTICE,  ETC.  535 

not  illegal,  be  interfered  with  by  the  courts.    Michael  v.  White, 
181  S.  W.  130,  121  Ark.  315. 

Sec.  572.    Equity. 

A  court  of  equity  will  not  enforce  against  the  owner  of  land 
a  contract  of  sale  made  by  his  agent  under  authority  given 
six  years  before,  where  the  land  has  greatly  appreciated  in 
value  meantime,  and  the  agent,  without  advising  his  principal 
of  such  fact,  made  the  sale  for  a  price  grossly  inadequate  at 
the  time,  though  within  the  terms  of  the  original  authority. 
Hall  v.  Gambrill,  92  Fed.  32,  34  C.  C.  A.  190;  Proudfoot  v. 
Wightman,  78  111.  553.  Compare  Sec.  762. 

A  broker  procured  to  be  made  to  himself  a  deed  of  land 
which  he  was  employed  to  sell,  the  grantor  intending  it  only 
as  a  means  of  carrying  into  effect  a  supposed  sale  to  a  third 
party,  but  the  grantee  described  intended  to  obtain  the  land 
to  his  own  use,  and  also  fraudulently  misrepresented  the  value 
of  the  consideration,  which  consisted  of  certificates  of  stock 
in  mining  companies.  Held,  that  the  deed  was  not  void,  but 
only  voidable,  on  either  ground,  and  that  if  the  grantor,  who 
soon  learned  the  facts  entitling  him  to  a  reconveyance,  neg- 
lected for  more  than  two  years  to  do  any  act  to  avoid  it,  and 
exchanged  the  stocks  for  other  stocks,  he  must  be  taken  to 
have  ratified  the  conveyance,  and  could  not  maintain  a  writ 
of  entry  to  recover  the  land.  Bassett  v.  Brown,  105  Mass.  551. 
Compare  Sec.  321. 

An  agent  sold  land  of  his  principal  and  took  a  note  for  the 
purchase  money  in  the  name  of  himself  and  his  principal,  and 
assigned  it  to  C.,  who  sued  thereon  in  the  names  of  the  payees 
for  his  use  and  recovered  judgment.  Held,  that  the  assign- 
ment by  the  agent  passed  no  interest  of  his  principal,  and 
that  equity  would  relieve  against  the  judgment.  Wright  v. 
Ray,  3  Humphrey  (Tenn.),  68. 

Where  defendant  obtained  authority  from  plaintiff  to  sell 
timber  for  the  latter,  and  procured  purchasers  at  the  price 
named  by  plaintiff,  but  represented  to  plaintiff  that  he  made 
the  sale  at  a  much  less  price,  and  could  not  get  the  price  named 
by  plaintiff,  and  thus  induced  plaintiff  to  convey  the  timber 
to  the  purchasers  at  the  less  price  and  appropriated  the  bal- 


536  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

ance  paid  for  the  timber  by  the  purchasers  to  himself,  under 
a  secret  agreement  with  them,  the  transaction  was  a  fraud  on 
plaintiff,  and  he  was  entitled  to  equitable  relief.  Lee  v.  Pattillo, 
105  Va.  10,  52  S.  E.  696. 

In  an  action  for  the  breach  of  a  contract  to  pay  a  broker  a 
specific  amount  for  procuring  a  loan  on  defendant's  prop- 
erty, where  defendant's  refusal  to  accept  the  loan  was  shown, 
defendant  may  prove  that  the  broker  had  agreed  to  pay  the 
lender  a  bonus  of  a  specified  per  cent,  of  his  commission,  to 
show  the  amount  the  broker  was  entitled  to  recover,  on  the 
equitable  principle  that  the  recovery  must  be  confined  to  the 
actual  loss.  Finch  v.  Pierce,  103  N.  Y.  S.  765,  53  Misc.  554; 
Gatling  v.  Central  Spar  Verein,  73  N.  Y.  S.  765,  55  Misc.  554; 
McGovern  v.  Bennett,  146  Mich.  558,  109  N.  W.  1055,  13  D.  L. 
N.  853 ;  Duncan  v.  Borden,  13  Colo.  App.  481,  59  P.  60.  See  also 
Sees.  1070,  1078. 

Defendant,  a  real  estate  agent,  submitted  to  his  non-resident 
principal  an  offer  for  certain  real  estate,  made  by  a  person 
in  his  employ,  without  stating  this  fact,  at  a  time  when  values 
were  rapidly  appreciating,  which  offer  was  accepted  by  plain- 
tiff. The  alleged  purchaser,  finding  himself  unable  to  raise  the 
money,  conveyed  to  defendant,  who  assumed  the  former's  lia- 
bility. Held,  that  the  conveyance  would  not  be  cancelled  in 
the  absence  of  proof  that  defendant  intended  to  purchase  his 
principal's  property  in  the  name  of  another.  Bookwalter  v. 
Lansing,  23  Neb.  291,  36  N.  W.  549. 

Where  agents  of  the  owner  of  land  in  contracting  to  sell 
it  exceeded  their  authority  by  extending  the  time  within  which 
the  purchaser  could  make  a  cash  payment,  and  by  receiving  a 
sum  to  be  held  for  the  principal  as  a  forfeit  or  payment  on 
the  purchase  price,  the  purchaser  was  not  entitled  to  specific 
performance  of  the  contract.  Shirley  v.  Coffin  (Tex.  Civ.  App. 
'09),  121  S.  W.  181. 

Defendant  M.,  representing  that  he  owned  or  controlled  cer- 
tain mining  claims,  employed  plaintiff  to  procure  capital  to 
purchase  and  operate  them,  whereupon  complainant  procured 
defendant  L.  to  advance  money,  under  a  contract  between  M. 
and  L.  for  the  conveyance  of  the  claims  to  a  corporation  which 
they  formed,  it  being  agreed  that  a  portion  of  the  stock  should 


PLEADINGS,  PKACTICE,  ETC.  537 

be  issued  to  M.  in  consideration  of  a  transfer  of  the  claims  to 
the  corporation,  and  that  a  portion  of  M.'s  stock  so  issued 
should  be  transferred  to  L.,  in  payment  for  the  money  which 
he  advanced,  both  M.  and  L.  agreeing  that  the  plaintiff  should 
receive  $50,000  of  such  stock  for  his  commissions.  M.  in  fact 
never  purchased  or  conveyed  any  claims  to  the  corporation 
with  money  furnished  by  L.,  but  squandered  such  money,  and 
no  stock  was  issued  to  him  therefor.  Held,  that,  while  com- 
plainant, under  such  facts,  had  a  cause  of  action  at  law  for  his 
services  against  M.  &  L..  he  could  not  maintain  a  bill  in  equity 
against  the  corporation,  or  either  M.  or  L.  to  compel  a  trans- 
fer of  $50,000  of  the  corporation's  stock  to  him.  Also  held, 
that  specific  performance  of  M.'s  agreement  to  convey  the  min- 
ing claims  to  the  corporation  could  not  be  decreed,  as  it  did 
not  appear  that  M.  had  title  thereto,  but  the  contrary;  and 
that  neither  Martin,  nor  Ryan,  nor  Lewis  had  equitable  title 
to  the  stock,  which  belonged  to  the  company.  Ryan  v.  Martin, 
165  F.  765. 

A  vendor  of  land  who  has  been  compelled  by  a  decree  avoid- 
ing the  sale  to  repay  the  commissions  paid  directly  to  the 
agent  by  the  purchaser  as  a  part  of  the  consideration,  being 
entitled  to  recover  them  from  the  agent  in  assumpsit,  is  not 
entitled  to  relief  in  equity  by  subrogation  to  the  rights  which 
the  purchaser  had,  but  did  not  urge  against  the  agent.  Volker 
v.  Fisk  (N.  J.  Eq.  '09),  72  A.  1011. 

A  cause  of  action  for  commissions  by  a  broker  who  procures  a 
purchaser,  making  a  contract  with  the  owner  stipulating  for  a 
forfeiture  as  liquidated  damages  of  the  partial  payment  in  the 
event  of  the  purchaser's  failure  to  complete  the  contract,  arises 
when  the  sale  is  consummated  or  the  contract  may  be  specifically 
enforced.  Ramsey  v.  West  Texas  Bank  &  Trust  Co.,  155  S.  W. 
551,  —  Tex.  Civ.  App.  — . 

Where  plaintiff's  brokers  fraudulently  secured  title  to  certain 
real  estate  belonging  to  plaintiff  and  incumbered  it,  plaintiff  was 
entitled  to  have  the  incumbrance  cancelled  and  the  title  restored. 
Monyhan  v.  Wolff,  143  P.  824,  26  Colo.  App.  289. 

Where  an  agent,  without  the  knowledge  of  his  principal,  acted 
for  the  other  party  to  a  contract  for  an  exchange  of  land,  and 
the  principal  brought  an  action  to  rescind  the  contract,  and  was 


538  AMERICAN   LAW  EEAL  ESTATE   AGENCY. 

denied  rescission  because  she  was  unable  to  put  defendant  in  statu 
quo,  and  the  court  found  that  she  was  entitled  to  receive  from 
defendant  a  sum  of  money  which  defendant  had  agreed  to  pay 
on  a  mortgage  on  the  land  conveyed  to  him,  but  had  wrongfully 
refused  to  pay  the  same,  judgment  for  such  sum  would  be  ren- 
dered as  alternative  relief,  not  only  against  defendant,  but  against 
the  agent,  who  was  also  a  party  to  the  action.  Neuman  v.  Fried- 
man, 136  S.  W.  251,  156  Mo.  App.  142. 

A  purchase  of  land  by  an  agent  for  its  sale,  who,  without 
knowledge  of  his  principal,  buys  property  that  he  was  to  sell; 
held,  voidable  at  the  instance  of  the  grantor.  Payne  v.  Beard, 
247  F.  247,  159  C.  C.  A.  341,  cer.  den.,  Beard  v.  Payne,  38  S. 
Ct.  335,  246  U.  S.  666,  62  L.  Ed.  929. 

Where  contract  of  sale  provided  that  broker  should  have  the 
right  to  demand  the  delivery  of  a  deed,  the  broker  can  not  insist 
that  it  was  the  duty  of  the  owner  to  enforce  specific  performance. 
Alison  v.  Chapman,  173  P.  389,  —  Cal.  App.  — . 

An  agent  of  an  owner  to  find  a  purchaser  on  the  owner's  terms, 
by  a  sale  of  land  on  such  terms  could  not  compel  its  conveyance. 
Schuhmacher  v.  Lebeck,  173  P.  1072,  —  Kan.  Sup.  — . 

Attempt  by  agent  authorized  to  find  a  purchaser  for  land  on 
certain  terms  to  purchase  the  land  for  himself,  without  disclosing 
himself  as  purchaser,  was  within  the  rule  forbidding  a  selling 
agent  to  buy  for  himself,  that  he  was  to  receive  as  compensation 
whatever  the  land  brought  over  a  fixed  sum.  Id. 

A  contract  for  the  sale  of  realty  negotiated  by  a  broker  who 
represents  not  only  the  seller  but  also  the  purchaser,  without  the 
seller's  knowledge,  is  voidable  at  the  seller's  option.  McCulley  v. 
Rivers,  170  1ST.  W.  24,  200  Mich.  417. 

In  a  suit  by  a  property  owner  for  the  cancellation  of  notes 
which  he  executed  and  delivered  to  defendants  as  compensation 
for  the  negotiation  of  a  loan,  which  was  intended  to  enable  him 
to  construct  a  permanent  building  on  his  property;  held,  that 
the  notes  should  be  cancelled,  as  without  consideration,  the  loan 
not  having  been  consummated  because  of  conditions  insisted  upon 
by  the  lender  procured  by  the  brokers.  Newman  v.  Adelsperger, 
173  N".  W.  351,  —  Mich.  Sup.  — . 

If  the  broker  was  the  agent  of  the  buyers  of  land  and  collected 
full  price  from  them  and  failed  to  pay  it  to  the  seller,  as  between 


PLEADINGS,  PRACTICE,  ETC.  539 

the  seller  and  buyers  the  transaction  will  be  treated  as  if  the 
buyers  had  not  paid  any  part  of  the  price,  and  decree  of  cancel- 
lation of  the  seller's  deed  to  them  will  result.  Wynn  v.  Hoffman, 
82  S.  32,  —  Ala.  Sup.  — . 

Equity  has  jurisdiction  of  a  suit  by  a  corporation  against  a 
real  estate  agent  who  was  engaged  to  purchase  a  factory  site  for 
the  corporation;  and,  notwithstanding  the  fiduciary  relations, 
made  a  certain  profit,  the  jurisdiction  of  equity  not  being  denied 
by  reason  of  a  right  of  action  at  law  and  on  quasi  contract. 
H.  J.  Jaeger  Co.  v.  Hannan,  108  A.  1,  —  N.  J.  Eq.  — . 

Where  owner  of  land,  upon  selling  it,  gave  to  broker  who  bad 
assisted  in  procuring  the  purchaser  the  owner's  note,  which  was 
to  be  surrendered  by  the  broker  to  the  owner,  if  notes  represent- 
ing three  instalments  of  the  purchase  price  of  the  land  were  not 
paid,  and  later  the  land  sale  was  cancelled  and  the  land  recon- 
veyed  to  the  owner,  but  the  owner's  note  to  the  broker  was 
transferred  by  the  latter  to  an  innocent  purchaser  before  matur- 
ity which  recovered  thereon,  the  owner  was  entitled  to  recover 
over  against  the  broker.  Gillean  v.  First  State  Bank  of  Barry, 
219  S.  W.  896,  —  Tex.  Civ.  App.  — . 

If  a  real  estate  agent  having  property  of  another  to  sell  became 
personally  interested  in  the  sale,  without  knowledge  of  the  owner, 
equity  will  not  aid  him  (broker)  in  enforcing  his  interest  so  ac- 
quired in  the  property  sold.  Chester  v.  Campbell,  109  A.  901,  — 
N.  J.  Ct.  of  Err.  and  App.  — . 

In  view  of  the  relations  between  parties  the  real  estate  broker 
with  whom  property  is  listed  for  sale  can  not  purchase  it  for 
himself,  or  become  interested  in  the  purchase,  unless  his  interest 
is  disclosed  to  the  principal,  and  even  when  disclosed  his  actions 
must  be  characterized  by  the  utmost  good  faith  thereafter,  and 
broker  who  undertook  to  find  a  purchaser  for  property  belonging 
to  an  aged  woman  can  not,  where  he  did  not  disclose  to  her  his 
interest,  have  specifically  enforced  for  his  own  benefit  as  pur- 
chaser a  contract  for  sale  which  she  signed,  but  which  obligated 
no  one  to  purchase.  Besser  v.  Allen,  111  A.  885,  —  E.  I. 
Sup.  — .  * 

In  an  action  for  specific  performance  of  contract  for  sale  of 
land,  it  must  be  shown  that  the  agent's  authority  was  identical 
with  the  terms  of  contract  sued  on,  and  if  terms  of  contract  vary 


540  AMERICAN   LAW   REAL   ESTATE    AGENCY. 

from  express  authority,  where  express  authority  rests  in  parol, 
proof  of  parol  authority  must  be  clear  and  convincing,  and  also 
show  authority  to  include  all  material  terms  embodied  in  con- 
tract.   Spengler  v.  Sonneriberg,  88  0.  S.  192. 
Sec.  573.    Exceptions. 

Where  an  agent  in  making  a  sale  of  real  estate  has  acted  as 
agent  for  the  vendor  as  well  as  the  vendee,  he  can  not  recover 
commissions  from  the  vendee,  unless  he  brings  the  case  within 
one  of  the  established  exceptions  to  the  general  rule  that  an 
agent  can  not  recover  commissions  from  both  parties  to  the 
transaction.  Bunn  v.  Kerch,  214  111.  259,  73  N.  E.  419. 

Sec.  574.    Forgery. 

The  treasurer  of  a  charitable  corporation,  without  authority, 
took  railroad  bonds  registered  in  the  name  of  the  corpora- 
tion, to  a  broker  for  sale ;  the  broker  refused  to  handle  the 
bonds  unless  they  were  made  transferable  to  bearer  by  the 
legal  transfer  agent  of  the  railroad;  the  transfer  agent  re- 
quired from  the  corporation  a  copy  of  a  resolution  of  its  di- 
rectors authorizing  the  transfer  and  a  power  of  attorney  to 
make  it;  the  treasurer  drew  up  a  resolution  of  authority  and 
forged  thereto  the  signatures  of  the  officers  and  the  seal  of  the 
corporation,  and  also  forged  a  power  of  attorney;  the  transfer 
agent  thereupon,  in  good  faith,  made  the  transfer,  and  the 
broker  sold  the  bonds.  Held,  that  the  broker  and  the  railroad 
company  were  liable  to  the  corporation  for  the  value  of  the 
bonds,  though  both  acted  in  good  faith,  and  the  corporation  may 
recover  from  either.  Jennie  Clarkson  Home  for  Children  v.  R.  R. 
Co.,  87  N.  Y.  S.  348,  1137,  1138,  92  A.  D.  491,  618,  617,  182 
K  Y.  47,  507,  74  K  E.  571,  1118,  70  L.  E.  A.  787.  Compare 
Sees.  351,  280. 

Ordinarily,  however,  brokers  are  not  personally  liable  for  loss 
on  a  forged  note  sold  by  them,  where  they  advised  the  vendee  at 
the  sale  that  they  were  acting  as  agents  and  disclosed  their  prin- 
cipal. Bailey  v.  Galbreath,  100  Teun.  599,  47  S.  W.  84? 

A  real  estate  agent  enlisting  a  large  tract  of  land  for  an  owner 
to  be  sold  in  subdivisions,  who  told  a  purchaser,  with  knowledge 
of  the  agency,  but  not  that  prices  had  been  fixed,  that  the  price 


PLEADINGS,  PRACTICE,  ETC.  541 

of  the  particular  tract  was  $500,  $250  down  and  $250  in  six 
months,  was  acting  within  the  scope  of  his  apparent  authority 
when  he  delivered  a  forged  contract  for  deed,  and  a  forged  deed, 
when  the  purchaser  made  the  two  payments,  though  the  agent 
was  not  authorized  to  sell  the  particular  tract  for  less  than  $600. 
Bagley  v.  Paris,  179  P.  795,  —  Wash.  Sup.  — . 

Sec.  575.    Loan  payable  in  gold. 

Where  plaintiffs  were  employed  by  defendants  to  procure  for 
them  a  loan  on  a  mortgage  on  land,  and  the  loan  was  not  made 
solely  because  the  lender  found  insisted  on  a  clause  in  the 
mortgage  that  the  principal  and  interest  should  be  paid  in 
gold;  the  plaintiffs  did  not  perform  the  contract  and  are  not 
entitled  to  compensation,  since  the  contract  meant  a  loan  to 
be  paid  in  lawful  money,  and  the  mortgage  loan  could  not  be 
paid  in  but  one  kind  of  money.  Caston  v.  Quimby,  178  Mass. 
153,  59  N.  E.  653.  See  also  Sec.  546. 

Sec.  576.    Licenses. 

In  the  absence  of  evidence  to  the  contrary,  that  the  plain- 
tiff was  licensed  to  act  as  a  broker  will  always  be  presumed. 
Munson  v.  Fenno,  87  111.  App.  655;  Shapler  v.  Scott,  85  Pa. 
St.  329. 

It  is  the  rule  in  most  jurisdictions  that  a  broker  who  fails 
to  procure  a  license  to  carry  on  his  business,  as  required  by 
law,  is  barred  recovery  of  commissions  for  acting  as  broker. 
Whitfield  v.  Hiding,  50  111.  App.  179 ;  Eckert  v.  Collot,  46  111. 
App.  361;  Beeder  v.  Jones  (Del.  Super.  '02),  65  A.  571;  Rich- 
ardson v.  Brix,  94  Iowa,  626,  63  N.  W.  325 ;  Tount  v.  Denning, 
52  Kan.  629,  35  P.  207;  Buckley  v.  Humason,  50  Minn.  195, 
52  N.  W.  385 ;  Wicks  v.  Carlisle,  12  Okla.  337,  72  P.  377 ;  John- 
son v.  Hulings,  103  Pa.  St.  498;  Coles  v.  Meade,  5  Pa.  Super. 
Ct.  334;  Costello  v.  Goldbeck,  9  Phila.  (Pa.)  158;  Stevenson 
v.  Ewing,  87  Term.  46,  9  S.  W.  230 ;  Saule  v.  Ryan  (Tenn.  Ch. 
App.  '99 ),  53  S.  W.  977;  Pile  v.  Carpenter,  118  Tenn.  288,  99 
S.  W.  360;  Weinshenker  v.  Epstein,  176  111.  App.  104;  Friedland 
v.  Isenstein,  101  111.  App.  109;  Fuerst  v.  Stone,  102  111.  App. 
256. 

In  some  of  the  States  the  courts  allow  the  recovery  of  com- 


542  AMEBICAN  LAW   EEAL   ESTATE   AGENCY. 

missions  by  an  unlicensed  broker,  upon  the  ground  that  the 
license  laws  are  enacted  purely  as  revenue  measures,  and  have 
no  effect  on  the  rights  of  the  parties  inter  se.  Houston  v.  Bo- 
agni,  McGloin  (La.),  164;  Walker  v.  Baldwin,  103  Md.  352, 
63  A.  362;  TooTcer  v.  Duckworth,  107  Mo.  App.  231,  80  S.  W. 
963;  Prince  v.  Eighth  St.  Baptist  Ch.,  20  Mo.  App.  332;  Euck- 
man  v.  Berghold,  37  N.  J.  L.  437;  Amato  v.  Dreyfus  (Tex.  Civ. 
App.  '96),  34  S.  W.  450;  Watkins  Ld.  Mtge.  Co.  v.  Thetford 
(Tex.  Civ.  App.  '06),  96  S.  W.  72;  Ober  v.  Stephens,  54  W. 
Va.  354,  46  S.  E.  195 ;  Stiewel  v.  Lally,  89  Ark.  195,  115  S.  W. 
1134;  Smith  v.  Sharp,  50  S.  381,  162  Ala.  433,  136  Am.  St.  Eep. 
52;  Alford  v.  Creigh,  62  S.  254,  7  Ala.  App.  358;  Hodges  v. 
Bayley,  143  S.  W.  92,  102  Ark.  200;  Harrison  v.  Kersey,  64  S. 
353,  67  Fla.  24;  Baskett  v.  Jones,  225  S.  W.  158,  —  Ky.  Ct. 
App.  — . 

The  fact  that  a  real  estate  agent  had  a  license  at  the  time 
of  the  action  to  recover  commissions  does  not  raise  a  presump- 
tion that  he  had  a  license  two  years  before,  at  the  time  of  the 
transaction.  Eckret  v.  Collot,  46  111.  App.  361. 

One  who,  while  engaged  in  other  business,  sells  land  for  an- 
other, may  recover  his  commissions,  though  he  had  not  taken 
out  a  license  as  required  of  real  estate  agents,  since  a  single 
sale  does  not  constitute  the  exercise  of  the  business  of  real  estate 
brokerage.  O'Neill  v.  Sinclair,  153  111.  525,  39  K  E.  124; 
Roeder  v.  Butler,  19  Pa.  Sup.  Ct.  604;  Jackson  v.  Hough,  38 
W.  Va.  236,  18  S.  E.  575;  Pope  v.  Beale,  108  Mass.  561 ;  Packer 
v.  Sheppard,  127  111.  Ap.  598.  Infra,  Springsteen  v.  Lewis,  259 
F.  518. 

The  fact  that  the  agent  had  taken  out  no  license  as  a  real 
estate  agent  under  the  internal  revenue  law  of  the  United 
States  will  not  affect  his  right  to  recover  compensation;  the 
sole  object  of  that  law  in  requiring  real  estate  agents  to  take 
out  licenses  was  to  raise  revenue;  the  question  in  such  case  is, 
whether  the  statute  was  intended  as  a  protective  measure  or 
merely  as  a  fiscal  expedient;  whether  the  Legislature  intended 
to  prohibit  the  act  unless  done  by  a  qualified  person,  or  merely, 
that  the  person  who  did  it  should  pay  a  license  fee ;  if  the  lat- 
ter, the  act  is  not  illegal.  RucJcman  v.  Bergholz,  37  N.  J.  L.  437. 

A  trust  company  incorporated  in  Pennsylvania,  under  an 


PLEADINGS,  PEACTICE,  ETC.  543 

act  of  the  Legislature,  and  authorized  to  buy  and  sell  real  es- 
tate, is  not  liable  as  a  real  estate  broker  for  the  license  tax 
imposed  on  any  individual  or  corporation.  Commonwealth  v. 
Real  Estate  Trust  Co.,  211  Pa.  St.  51,  60  A.  551 ;  Manke  v.  Tingh, 
98  P.  792  (Kan.  Sup.  '08). 

An  auction  sale  of  real  property  does  not  make  the  one  ne- 
gotiating such  sale  a  broker  within  the  meaning  of  the  license 
act.  Tedinsky  v.  Strouse,  6  Pa.  Super.  Ct.  587,  42  Week.  Not. 
Cas.  12.  A  receipt  for  license  from  the  State  Treasurer  is  not 
such  a  license  as  authorizes  a  real  estate  broker  to  act  so  as 
to  relieve  himself  from  penalties,  and  to  enable  him  to  recover 
commissions.  Jadivin  v.  Hurley,  10  Pa.  Super.  Ct.  104. 

Unless  it  clearly  appears  that  the  Legislature  intended  more, 
it  will  be  held  that  the  penalty  imposed  by  the  act  on  a  real 
estate  agent  selling  property  on  commission,  without  a  license, 
excludes  all  others.  0~ber  v.  Stephens,  54  W.  Va.  354,  46  S. 
E.  195;  Coll  v.  Dunlevie,  63  W.  Va.  398,  60  S.  E.  384.  A 
person  who  sells  property  for  another  under  a  special  contract, 
without  holding  himself  out  to  be  a  real  estate  broker,  may  re- 
cover though  he  has  not  complied  with  the  act  requiring  real 
estate  brokers  to  take  out  a  license.  Black  v.  Snook,  204  Pa. 
St.  119,  53  A.  648 ;  Yedinsky  v.  Strouse,  6  Pa.  Super.  Ct.  587, 
42  W.  Not.  Cas.  12.  Supra.  Also  Sec.  604. 

Where  a  resident  of  New  Jersey  contracts  with  a  real  estate 
broker  in  Pennsylvania  to  sell  real  estate  situate  in  New  Jersey, 
he  is  not  required  to  have  a  real  estate  broker's  license  under 
the  Pennsylvania  statute,  to  make  his  contract  valid.  Callaway 
v.  Prettyman,  218  Pa.  St.  293,  67  A.  418;  Cervenka  v.  Hunter, 
185  111.  App.  547.  In  an  action  to  recover  commissions  on  a 
sale  or  exchange  of  real  estate,  where  the  plaintiff  describes  him- 
self in  his  statement  of  claim  as  a  dealer  in  real  and  personal 
property,  and  in  the  regular  course  of  business  made  the  sale  or 
exchange  in  question,  and  it  is  admitted  that  plaintiff  had  not 
taken  out  a  license,  as  required  by  law,  the  statement  of  claim  is 
admissible  as  evidence  tending  to  show  that  the  plaintiff  is  a  real 
estate  broker,  and  when  the  statement  is  supported  by  the  evi- 
dence of  two  witnesses  called  by  the  defendant,  it  is  error  for 
the  court  to  give  binding  instructions  for  plaintiff.  Sprague  v. 
Reilly,  34  Pa.  Super.  Ct.  332. 


544  AMEEICAN  LAW  EEAL  ESTATE   AGENCY. 

If  a  broker  was  duly  licensed  at  the  time  he  completed  the 
negotiations  for  a  sale  of  real  estate,  by  which  the  purchaser 
leased  the  same  with  an  option  to  purchase,  the  fact  that  the 
broker  was  not  licensed  at  the  time  the  purchaser  elected  to 
exercise  such  option  was  no  defense  to  the  broker's  claim  for 
commissions.  Coates  v.  Locust  Point  Co.,  102  Md.  291,  62  A. 
625. 

If  it  does  not  appear  from  the  evidence  that  plaintiff  was 
licensed  to  engage  in  or  carry  on  the  business  of  a  real  estate 
broker  in  the  State  where  the  contract  is  alleged  to  have  been 
made,  the  defendant  would  not  be  entitled  for  this  reason  to 
a  verdict,  if  there  is  nothing  in  the  evidence  to  show  that 
a  real  estate  broker  is  required,  under  the  law  of  that  State,  to 
have  a  license  in  order  to  carry  on  the  business,  and  there  is 
no  averment  in  the  pleadings  that  the  plaintiff  was  acting  as 
a  licensed  real  estate  broker  in  the  transaction  of  the  business 
in  question.  Richards  v.  Eichman,  5  Penne.  (Del.)  558,  64  A. 
238. 

While  an  unlicensed  broker  can  not  recover  commissions  for 
his  services,  he  may  recover  for  advances  made  in  negotiating  con- 
tracts for  a  customer,  when  such  contracts  are  not  prohibited  or 
against  public  policy.  Cutler  v.  Partridge,  182  111.  App.  350. 

A  license  issued  to  a  real  estate  broker  in  a  trade  name  under 
which  the  broker  did  business;  held,  not  to  defeat  his  right  to 
commissions,  it  appearing  that  he  paid  for  the  license  for  no  one 
but  himself  or  business  under  it,  and  that  issuance  in  his  indi- 
vidual name  was  therefore  refused.  Octinger  v.  Levit,  186  111. 
App.  104. 

An  ordinance  requiring  a  license  by  an  employee  of  a  broker, 
where  he  shall  engage  himself  in  the  business  or  acting  in  the 
capacity  of  a  broker;  held,  not  to  apply  to  mere  employees  of 
brokers,  though  they  are  paid  a  certain  portion  of  the  commis- 
sions. Thorpe  v.  Weber,  191  111.  App.  2. 

Where  a  broker's  license  is  issued  to  a  partnership,  and  one  of 
the  partners  succeeds  to  the  business  of  the  partnership  upon  dis- 
solution of  the  firm  and  continues  business  individually,  at  the 
same  location,  he  is  to  be  considered  a  licensed  broker.  Fried- 
land  v.  Isenstein,  191  111.  App.  109. 


PLEADINGS,  PEACTICE,  ETC.  545 

An  ordinance  requiring  licensing  of  brokers  applies  only  to 
persons  engaged  in  the  business  of  brokerage  as  an  occupation  or 
vocation.  Ross  v.  New  South  Farm  &  Home  Co.,  191  111.  App. 
353. 

Under  Pub.  Laws  1913,  chap.  201,  sec.  32,  in  relation  to  li- 
censes for  business  of  buying  and  selling  real  estate,  an  employee 
is  not  subject  to  tax,  but  is  protected  by  license  of  his  principal. 
Western  Carolina  Realty  Co.  v.  Rumbough,  90  S.  E.  931,  172  K 
C.  741. 

A  city  ordinance  licensing  real  estate  brokers  does  not  apply  to 
one  engaged  in  other  business  who  attempted  as  agent  to  dis- 
pose of  oil  leases  held  by  another.  Engles  v.  Blacker,  192  S.  W. 
193,  127  Ark.  385. 

Where  the  plaintiff,  an  unlicensed  real  estate  broker,  on  behalf 
of  the  defendant,  initiated  and  was  the  procuring  cause  of  an  ex- 
change of  defendant's  property  for  other  property,  which  was  ef- 
fected after  plaintiff  had  become  a  member  of  a  firm  which  was 
duly  licensed  to  conduct  a  real  estate  brokerage  business;  held, 
that  the  evidence  supported  a  finding  and  judgment  for  the  plain- 
tiff in  the  action  to  recover  commissions  for  effecting  such  ex- 
change. Cronstedt  v.  McCormick,  203  111.  App.  319. 

It  is  not  necessary  under  the  ordinance  of  the  City  of  Chicago 
that  the  hired  clerk  of  a  regularly  licensed  real  estate  broker, 
who  represents  his  employer  in  securing  a  lease  of  property  for 
the  latter  should  be  a  licensed  agent.  Kappes  v.  Bacon,  209  111. 
App.  290. 

That  plaintiff,  in  an  action  against  a  real  estate  broker  to  re- 
cover on  a  promise  to  pay  one-half  of  the  commission  received 
by  defendant  from  customers  secured  by  plaintiff,  is  not  the 
holder  of  a  broker's  license,  does  not  preclude  him  from  recover- 
ing. Gross  v.  Strauss,  208  111.  App.  263. 

Stat.  1919,  p.  1252,  providing  for  a  licensing  of  brokers  and 
real  estate  salesmen,  and  requiring  persons  desiring  to  engage  in 
such  business  to  furnish  evidence  of  good  moral  character,  etc., 
is  valid,  in  view  of  the  peculiar  nature  of  the  employment.  Rileij 
v.  Chambers,  185  P.  855,  —  Cal.  Sup.  — . 

Where  one  non-resident  of  a  city  engaged  the  services  of  an- 
other non-resident  to  sell  his  farm  on  commission,  he  can  not 
avoid  paying  commission  because  the  broker  had  not  a  license 


546  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

required  by  an  ordinance  of  the  city,  though  both  the  written 
contract  to  pay  the  broker  and  the  contract  of  sale  were  executed 
within  the  city.  Peters  v.  Andrews,  129  N.  E.  328.  —  Ind. 
App.  — . 

Sec.  577.    Limitations  and  restrictions. 

Where  the  contract  of  employment  limits  the  same  to  the 
sale  of  certain  property,  it  must  be  made  to  appear  that  the 
property  sold  was  within  the  description.  Maze  v.  Gordon, 
96  Cal.  61,  30  P.  962.  Where  a  broker  is,  by  agreement,  to 
receive  commissions  for  procuring  a  purchaser  for  land  only 
on  condition  that  a  sale  is  made  to  a  certain  person,  he  can 
not  recover  if  a  sale  to  such  purchaser  is  not  consummated, 
owing  to  the  fault  of  either  of  the  parties.  Lyle  v.  Uni.  Land, 
etc.,  Co.  (Tex.  Civ.  App.  '95),  30  S.  W.  723.  Compare  Sees. 
526  and  527.  A  qualification  of  a  broker's  right  to  commis- 
sions for  a  sale  of  property,  that,  "if  sold  to  a  party  sent  by 
Mr.  Rapp  all  this  week,  then  no  commission  is  to  be  paid;  also, 
A.  Ozias,"  limits  the  time  within  which  a  sale  to  such  persons 
might  be  made  without  payment  of  commissions,  to  ' '  this  week. '  * 
Gaty  v.  Clark,  28  Mo.  App.  332 ;  Smith  v.  Tate,  82  Va.  657. 

Sec.  578.    Broker  acting  as  a  mere  middleman. 

If  the  broker  acts  as  a  mere  middleman,  and  finds  a  pur- 
chaser at  the  price  fixed,  it  is  immaterial  that  each  party  to 
the  transaction  was  ignorant  of  the  broker's  employment  by 
the  other  party.  Montross  v.  Eddy,  94  Mich.  100,  53  N.  W.  916. 
[A.  broker  whose  undertaking  is  merely  to  find  a  purchaser  at 
a  price  fixed,  or  at  a  price  satisfactory  to  the  seller,  is,  in  reality, 
only  a  middleman,  whose  duty  is  performed  when  the  buyer  and 
seller  are  brought  together.  Johnson  v.  Hay  ward,  77  Neb.  35, 
107  N.  W.  384,  5  L.  R.  A.  (N.  S.),  112:  Handleij  v.  Shaffer, 
59  S.  286,  177  Ala.  636.  Compare  Earten  v.  Loeffler,  31  App. 
D.  C.  362.  See  also  Sec.  475. 

A  middleman  is  employed  to  bring  two  or  more  persons  to- 
gether, the  parties,  when  they  meet,  to  do  their  own  negotiating 
and  to  make  their  own  markets,  and  he  sustains  no  confidential 
relations  to  either  party.  Arthur  v.  Ga.  Cotton  Co.,  96  S.  E. 
232,  —  Ga.  App.  — . 


PLEADINGS,  PRACTICE,  ETC.  547 

In  an  action  to  recover  a  commission,  for  services  rendered 
as  a  middleman  in  bringing  the  parties  together  to  make  an 
exchange  of  property,  evidence  held  to  show  that  plaintiff  was 
an  active  broker  representing  the  party  with  whom  defendant 
made  the  exchange,  and  was  not  a  mere  middleman  who  simply 
brought  the  parties  together  and  permitted  them  to  make  their 
own  trade,  and  was  consequently  not  permitted  to  recover  com- 
missions from  defendant.  Pinch  v.  Morford,  142  Mich.  63,  105 
N.  W.  22.  Under  a  petition  alleging  defendant's  employment 
of  plaintiff  as  a  broker,  in  effecting  a  sale  of  property  for  de- 
fendant, plaintiff  can  not  recover  on  proof  of  services  as  a  mere 
middleman.  Southack  v.  Lane,  65  N.  Y.  S.  629,  32  Misc.  141. 

A  broker  who  acts  as  a  middleman  to  effect  a  purchase  and 
sale  of  property,  represents  both  the  purchaser  and  the  seller 
and  is  the  common  agent  of  both,  Colvin  v.  Williams,  3  Harr. 
&  J.  (Md.)  38.  38;  also  to  hold  contract  of  sale.  Sec.  557. 

To  a  certain  extent  and  for  certain  purposes,  by  the  un- 
derstanding and  usages  of  business  and  the  nature  of  his  em- 
ployment, a  broker  is  authorized  to  act  for  both  parties.  But 
what  he  does  in  that  relation  he  does  as  an  indifferent  person 
and  not  in  the  interest  of  either  party.  Every  one  who  employs 
him  is  presumed  to  know  and  consent  that  to  that  extent  and 
for  such  purposes  he  may  so  act.  But  beyond  that  he  has  no 
right  to  engage  in  the  interests  of  the  other  party,  without 
the  actual  knowledge  and  consent  of  his  principal.  Even  cus- 
tom or  usage  will  not  be  allowed  to  extend  the  right  to  act  for 
and  receive  commissions  from  both  parties  to  matters  where 
the  interests  of  the  parties  are  or  may  be  diverse.  Walker  v. 
Osgood,  98  Mass.  348.  Compare  Sees.  475,  799b.  See  also  Sec. 
764. 

Sec.  578a.  Broker  masquerading  as  a  middleman  who  ac- 
quires interests  adverse  to  owner  forfeits  commissions, 
and  must  account  for  ill-gotten  gains. 

Where  an  agent  stands  in  the  situation  of  a  mere  middleman, 
not  having  undertaken  to  act  as  agent  for  either  party  or  to  ex- 
ercise his  skill,  knowledge  or  influence,  but  merely  to  bring  the 
parties  together  to  deal  for  themselves,  he  may  recover  from 


548  AMERICAN  LAW  EEAL   ESTATE   AGENCY. 

each,  but  to  stand  in  the  position  of  a  middleman  he  must  have 
limited  his  services  to  the  bringing  of  the  parties  together,  and 
where  the  broker,  in  disregard  of  his  duty,  conceals  an  adverse 
interest  or  secretly  enters  into  the  service  of  another,  he  not  only 
forfeits  his  right  to  commissions,  but  must  account  for  gains  un- 
lawfully acquired,  etc.  Schmidt  v.  Wallinger,  99  S.  E.  680,  125 
Va.  361. 

Sec.  579.    Unless  mistake  be  pleaded  and  proved  each  pur- 
chaser bound  for  the  whole  commission. 

Where  a  title  bond  is  executed  to  several  joint  purchasers, 
each  is  bound  for  the  whole  commission  payable  to  one  who 
has  assisted  them  in  making  the  purchase,  unless  a  mistake  in 
the  writing  is  pleaded  and  proved.  Schomberg  v.  Anxier,  101 
Ky.  292,  19  Ky.  L.  R,  548,  40  S.  W.  911;  Clifford  v.  Meyer,  6 
Ind.  App.  633,  34  N.  E.  23. 

Sec.  580.    Notice  immediate1"  terminating  agency  means  in  a 

reasonable  time. 

Where  the  contract  was  that  if  defendant  by  himself  or 
through  any  of  his  agents  sold  the  property,  defendant  was 
to  give  plaintiff  immediate  notice  of  that  fact,  the  meaning, 
taken  in  connection  with  the  admitted  facts,  was  an  actual 
sale  and  binding  agreement  on  the  finding  of  a  purchaser  by 
another  agent  than  plaintiff,  ready,  willing  and  able  to  buy, 
of  which  fact  defendant  had  notice,  immediate  notice  required 
by  the  contract  being  notice  within  a  reasonable  time,  taking 
into  consideration  the  situation  of  the  parties  and  all  the  sur- 
rounding circumstances.  Tuffree  v.  Bienford,  130  Iowa,  532, 
107  N.  W.  425. 

Sec.  580a.    The  word  "able"  in  statute  held  to  mean  "finan- 
cially able". 

The  word  "able"  as  used  in  Civil  Code  1910,  Sec.  3587,  which 
provides  that  the  broker's  commissions  are  earned  when,  during 
the  agency,  he  finds  a  purchaser  ready,  able  and  willing  to  buy, 
etc.,  means  "financially  able."  Shaw  v.  Chiles,  71  S.  E.  745,  9 
Ga.  App.  460. 


PLEADINGS,  PRACTICE,  ETC.  549 

Sec.  581.    Principal  may  remain  neutral  as  to  the  claims  of 
several  brokers. 

Where  several  brokers  are  openly  employed  to  sell  real 
property,  the  entire  duty  of  the  seller  is  performed  by  remain- 
ing neutral  between  them  and  he  has  a  right  to  make  the  sale 
to  a  buyer  produced  by  any  of  them  without  being  called  upon 
to  decide  between  these  several  brokers  as  to  which  of  them 
was  the  procuring  cause  of  the  purchase.  Vreeland  v.  Vatter- 
lein,  33  N.  J.  L.  247,  criticizing  Eggleston  v.  Austin,  27  Kan. 
245;  Scott  v.  Lloyd,  19  Colo.  401,  35  P.  733;  Witherbee  v. 
Walker,  42  Colo.  1,  93  P.  1118 ;  Dreyer  v.  Ranch,  42  How.  Pr. 
(N.  Y.)  22,  3  Daly,  434;  Martin  v.  Billings,  2  City  Ct.  R.  (N. 
Y.)  86 ;  Jennings  v.  T  rummer,  96  P.  874,  52  Oregon,  149 ;  Frinck 
v.  Gilbert  (Wash.  Sup.  '09),  101  P.  1088.  Compare  Sees.  291, 
446. 

Where  the  owner  lists  property  with  several  brokers  for  sale, 
he  occupies  a  neutral  position,  being  only  int3rested  in  the  re- 
sult, and  can  sell  and  pay  the  commission  to  the  first  broker 
who  presents  a  customer  who  is  ready  and  willing  to  purchase. 
Frink  v.  Gilbert  (Wash.  Sup.  '09),  101  P.  1088. 

Sec.  582.    A  proposition  is  not  proved  until  inconsistent  with 

the  negative. 

Upon  an  issue  whether  the  owner  of  real  estate  during  the 
continuance  of  an  option  given  upon  it,  offered  to  sell  it  to 
another  party  at  less  than  the  option  price,  a  statement  made 
by  such  party  to  a  witness  that  such  an  o^er  had  been  made 
to  him  is  not  admissible  evidence  against  the  owner;  it  is  mere 
hearsay;  the  fact  that  during  the  continuance  of  the  option 
the  owner  bargains  the  property  to  a  third  party,  but  contin- 
gent upon  the  failure  of  the  option  holder  to  comply  wich  the 
terms  of  his  option,  does  not  alone  constitute  a  breach  of  the 
option  by  the  owner;  upon  the  issue  whether  the  owner  dur- 
ing the  continuance  of  the  option  dissuaded  a  possible  customer 
of  the  option  holder  from  purchasing  from  him,  evidence  that 
the  owner  and  the  customer  had  several  interviews,  and,  after 
» the  termination  of  the  option,  entered  into  a  .contract  rela- 
tive to  the  land,  does  not  alone  prove  dissuasion  by  the  owner; 
the  customer  may  nevertheless  have  first  of  his  own  notion, 


550  AMERICAN  LAW  EEAL  ESTATE   AGENCY. 

abandoned  the  option  holder,  and  then  have  sought  to  persuade 
the  reluctant  owner;  the  affirmative  of  such  an  issue  is  not 
sustained  so  long  as  the  evidence  merely  justifies  suspicions  or 
surmises,  or  so  long  as  the  negative  may,  after  all,  be  consistent 
with  the  evidential  facts;  a  proposition  is  not  proved  until  the 
evidence  becomes  inconsistent  with  the  negative.  Smith  v. 
Lawrence,  98  Me.  92,  56  A.  455. 

Sec.  583.    Parol  contract  entered  into  by  agent  in  his  own  name 

binds  unnamed  principal. 

An  agent  can,  by  parol  contract  entered  into  in  his  own 
name,  bind  a  principal  whose  name  does  not  appear  in  the  in- 
strument executed  in  pursuance  thereof.  So  held,  in  an  action 
by  executors  to  recover  rent  upon  a  lease  not  under  seal,  the 
copy  adduced  being  signed  by  the  lessee  only,  and  the  plain- 
tiffs being  described  therein  as  landlords,  with  the  word  "agents'* 
after  their  names.  Nicoll  v.  Bwrke,  45  N.  Y.  Super.  Ct.  75.  See 
Sec.  601. 

Sec.  583a.     Contracts  between  brokers  to  share  commissions 
for  services  exempted  from  being  in  writing. 

While  Civil  Code,  Sec.  1624,  requiring  agreements  employing 
brokers  to  buy  or  sell  real  estate  for  hire  to  be  in  writing,  does 
not  extend  to  agreements  between  brokers  to  co-operate  in  mak- 
ing sales  for  a  share  of  the  commission,  and  recovery  may  be  had 
in  such  cases  on  proof  of  an  oral  agreement;  this  pre-supposes 
that  a  valid  contract  for  commissions  is  extant,  a  division  of 
which  could  be  subject  of  subsequent  oral  agreement.  Saunders 
v.  Yoakum,  107  P.  1007,  12  Cal.  App.  543 ;  Hageman  v.  O'Brien, 
141  P.  33,  24  Cal.  App.  270;  Hieddk  v.  Allen,  147  P.  474,  26 
Cal.  App.  509 ;  MacTcroth  v.  Sinky,  148  P.  978,  27  Cal.  App.  112 ; 
Oiks  v.  Wilmott,  52  S.  287,  59  Fla.  271;  Egeland  v.  Schiller, 
189  111.  App.  426;  Blake  v.  Hunkey,  128  P.  181,  88  Kan.  272; 
Collins  v.  Belford  &  Stump,  130  P.  662,  89  Kan.  92;  White  v. 
'Robinson,  138  1ST.  Y.  Sup.  992,  153  App.  Div.  776. 


PLEADINGS,  PRACTICE,  ETC.  551 

Sec.  584.  Contract  of  broker  to  share  in  profits  for  making 
sales  of  a  partnership. 

Where  a  real  estate  agent  has  a  written  contract  with  the 
owner  of  land  to  put  it  upon  the  market,  advertise  and  sell  the 
same,  having  for  his  interest  only  a  share  in  the  surplus  profits 
arising  from  the  proceeds  of  the  sale  of  the  land,  it  is  a  contract 
of  agency  and  not  of  partnership.  Durkee  v.  Ounn,  41  Kan.  496, 
21  P.  637;  Hiclcs  v.  Post,  154  Cal.  22,  96  P.  878.  Compare 
Seattle  Land  Co.  v.  Day,  2  Wash.  451,  27  P.  74. 

Sec.  584a.  Brokers  not  meeting  earlier  demands  not  pre- 
cluded thereby  from  sharing  in  profits  when  paying  share 
of  note  when  due. 

Where  real  estate  agents  gave  their  note  for  the  purchase 
price  of  land,  and  agreed  to  share  the  profits  arising  from  its  re- 
sale, the  failure  of  some  of  the  agents  to  meet  their  share  of  the 
note  before  it  was  due,  as  requested  by  the  others,  does  not  de- 
prive them  of  their  share  of  the  profits,  where  the  land  was  re- 
sold before  the  note  became  due,  so  that  there  was  no  actual 
default.  Etscheid  v.  Thiefanthaler,  177  N.  ,W.  887,  —  Wis. 
Sup.  — . 

Sec.  585.    Contract  to  pay  broker  a  commission  on  withdrawing 

land  from  sale  strictly  construed. 

A  provision  in  a  real  estate  broker's  contract  for  commis- 
sions for  a  sale  of  land,  that  the  owner  might  withdraw  the 
land  from  the  market  or  raise  the  price  on  paying  to  the  bro- 
ker two  per  cent,  of  the  price  stipulated,  is  penal  in  character 
and  must  be  strictly  construed.  Tracey  v.  Abney,  122  Iowa,  306, 
98  N.  W.  121.  Compare  Sees.  132,  552. 

Sec.  586.    In  trying  to  effect  a  sale  of  real  estate  party  has 

the  right  to  extravagantly  extol. 

A  party  in  trying  to  effect  a  sale  has  the  legal  right  to  puff 
the  property  in  the  most  extravagant  manner  and  exalt  its 
value  to  the  highest  point  his  antagonist's  credulity  will  bear. 
Tuck  v.  Downing,  76  111.  71. 


CHAPTER  III. 


SECTION. 

587.  Quantum  meruit. 

588.  Broker  has  right  of  action  against 

defaulting  purchaser  for  lost 
commissions. 

588a.  Broker's  right  to  recover  from 
vendee  price  paid  for  property 
purchased  for  him. 

589.  No  right  in  equity  arises  out  of 

a  verbal  contract  for  the  sale 
of  land. 

590.  Statute  of  frauds. 

591.  Real  estate  agent  not  liable  for 

failure  to  remove  snow  from 
sidewalk. 

592.  Seals,  and  the  necessity  for  their 

use. 

593.  When  tender  of  written  agree- 

ment by  purchaser  not  nec- 
essary. 

594.  Employment  of  broker  to  meas- 

ure land  does  not  sustain  claim 
of  broker  for  selling. 

595.  Where  title  taken  by  broker  to 

hind  purchased,  principal  may 
tender  amount  and  demand 
deed. 

596.  When  not  necessary  for  broker 

to  show  vendor  had  a  clear 
title. 

596a.  Broker  entitled  to  commission 
under  contract  upon  corporate 
employer  acquiring  title  to 
land. 

596b.  Marketable  title  in  fee  simple 
necessary  to  give  broker  right 
to  commissions,  in  absence  of 
binding  contract  with  pur- 
chaser. 
552 


SECTION. 

597.  Contract  of  sale  requiring  owner 

to  furnish  abstract  of  title  not 
within  authority  of  broker. 

598.  A  custom  of  usage  must  be  gen* 

eral  before  a  court  will  declare 
its  existence  as  a  matter  of  law, 

599.  Where  a  usage  is  proved  the  law 

raises  a  presumption  that  the 
agent  contracted  with  refer- 
ence thereto. 

600.  Unconstitutionally  of  statute  re- 

quiring contract  employing 
broker  to  be  in  writing. 

601.  Undisclosed  principal. 

601a.  Postal  card  insufficient  under 
statute  to  constitute  contract 
for  broker's  commissions. 

602.  Where  broker  must  be  authorized 

in  writing. 

602a.  Manner  in  which  contracts  with 
broker  to  sell  land  should  be 
construed. 

602b.  Broker  entitled  to  commission 
when  owner  and  customer 
reach  an  agreement. 

602c.  Broker  entitled  to  commission  on 
sale  on  contract  held  a  contract 
to  sell  and  not  of  agency. 

602d.  Contract  signed  by  one  and  later 
by  all  tenants  in  common  held 
sufficient  for  broker's  com- 
missions. 

602e.  Contract  of  employment  must  be 
in  writing,  whether  broker  or 
middleman. 

603.  Broker  cannot  recover  commis- 

sions where  contract  unen- 
forceable. 


PLEADINGS,  PRACTICE,  ETC. 


553 


SECTION. 

603a.  Contract  of  employment  to  pur- 
chase land  not  required  to  be 
in  writing. 

604.  Contract  by  unlicensed   broker 

not  absolutely  void. 

605.  Agreement  to  hire  auctioneer  to 

sell  land  need  not  be  in  writing. 

606.  Memoranda  held  insufficient  to 

meet  the  requirement  of  the 
statute  of  frauds. 

607.  Statute  of  limitations. 

608.  Rival  brokers. 

609.  If  purchaser  willing  to  perform, 

statute  of  frauds  not  available 
to  defeat  broker's  commissions. 

610.  Reasonable  price  inferred  by  law. 

611.  What  is  a  reasonable  time. 

612.  Broker's  employment  continues 

for  reasonable  time. 

612a.  Owner  allowed  reasonable  time 
after  purchaser  procured  to 
prepare  abstract,  deed,  etc. 

612b.  Broker's  contract  of  employ- 
ment required  owner  to  desig- 
nate tracts  and  fix  prices  and 
terms  within  a  reasonable  time. 

612c.  Favorable  reply  of  owner  to 
broker's  inquiry  bound  former 
for  reasonable  time  for  broker 
to  find  a  purchaser. 

6l2d.  Broker's  contract  of  employ- 
ment in  March  held  not  ended 
in  August. 

613.  Contract  to  pay  $1,000,000  for 

reasonable  time. 

614.  When    reasonable    time    imma- 

terial. 
614a.  When  six  months  not  unreason- 


8ECTION. 

able  delay  in  accepting  broker's 
offer  for  rinding  a  purchaser. 

615.  In  absence  of  express  agreement, 

reasonable  value  of  services 
recoverable. 

616.  Reasonable  compensation. 

617.  Not  necessary  for  broker  to  put 

defendant  in  default  before 
suing  for  compensation. 

618.  Ratification  not  shown  by  ac- 

quiescence without  knowledge. 

618a.  Reply  of  owner  that  did  not 
constitute  a  ratification. 

618b.  When  knowledge  of  broker  with- 
held from  purchaser  did  not 
bind  latter. 

619.  Ratification    by    acceptance    of 

offer  to  broker. 

620.  Ratification     cures     defect     in 

agent's  appointment. 
620a.  Sufficient  allegation  of  ratifica- 
tion. 

621.  Ratification  by  principal  execut- 

ing contract. 

622.  Ratification    by    acceptance    of 

proceeds. 

623.  To  constitute  ratification  of  act 

of  attorney,  knowledge  on 
part  of  principal  immaterial. 

624.  It  is  an  essential  prerequisite  to 

ratification  that  principal  had 
knowledge  of  unauthorized 
contract. 

624a.  Sale  by  owner's  son  at  reduced 
price  to  broker's  customer 
barred  broker's  commission. 

625.  Tender  not  necessary  to  entitle 

broker  to  recover  on  principal 
refusing  purchaser. 


Sec.  587.    Quantum  meruit. 

If  plaintiff  declares  on  an  express  contract,  but  fails  to  prove 
it,  in  most  jurisdictions  he  is  not  entitled  to  recover  on  a  quantum 
meruit.  Emery  v.  Atlanta  R.  E.  Ex.,  88  Ga.  321,  14  S.  E.  556; 
Hammers  v.  Merrick,  42  Kan.  32,  21  P.  783;  McDonald  v.  Ort- 


554  AMERICAN   LAW   EEAL   ESTATE    AGENCY. 

man,  98  Mich,  40,  56  N.  W.  1055;  Thuner  v.  Kanter,  102  Mich, 
59,  60  N.  W.  299;  McDonnell  v.  Stevenson,  104  Mo.  App.  191, 
77  S.  W.  766;  Veatch  v.  Norman,  109  Mo.  App.  387,  84  S.  W. 
350;  Dorrington  v.  Powell,  52  Neb.  440,  72  N.  W.  587;  Ed- 
wards v.  Goldsmith,  16  Pa.  St.  43;  Thornton  v.  Stevenson  (Tex. 
Civ.  App.  >95),  21  S.  W.  232;  Oliver  v.  Morawitz,  95  Wis.  1, 
69  N.  W.  977;  Green  v.  Mules,  30  L.  J.  C.  PL  (Eng.)  343. 
Compare  Sec.  639. 

A  real  estate  agent  suing  on  a  sale  of  land,  relying  on  a  spe- 
cial contract  for  a  commission,  can  not  recover  upon  quantum 
meruit.  Bentley  v.  Edwards,  146  N.  W.  347,  125  Minn.  179; 
51  L.  K.  A.  (N.  S.)  254,  Ann.  Gas.  1915  C,  882;  Bryant  v. 
Ayres,  190  111.  App.  499;  Read  v.  Farquharson,  207  S.  W.  335, 
—  Tex.  Civ.  App.  — . 

It  has  been  held  that  on  a  petition  to  recover  an  alleged  agreed 
compensation  for  services  as  broker,  a  recovery  may  be  had  on 
proof  of  the  reasonable  value  of  the  services,  and  the  variance 
may  be  disregarded  unless  it  appears  that  defendant  was  misled. 
Susdorf  v.  Schmidt,  55  N.  Y.  319;  Close  v.  Brown,  230  111.  228, 
82  N.  E.  629 ;  Gregg  v.  Loomis,  22  Neb.  174,  34  N.  W.  355. 

"Where  no  agreement  as  to  compensation  was  made  between 
the  owner  of  property  and  the  broker  employed  by  him  to 
make  a  sale  thereof,  the  broker,  on  procuring  a  purchaser,  could 
recover  on  a  quantum  meruit  for  his  services  in  making  the 
sale  at  the  price  he  did,  though  the  principal  had  previously 
revoked  the  agency  by  selling  the  property  without  the  broker's 
knowledge,  and  not  merely  compensation  for  his  services  up 
to  the  time  of  the  revocation  of  the  agency.  Reams  v.  Wilson, 
147  N.  C.  304,  60  S.  E.  1124.  Compare  Sec.  15. 

Under  a  contract  to  make  one  the  sole  agent  to  sell  lots  at 
a  commission  "which  shall  be  in  full  for  any  services  he  may 
render  in  surveying  and  laying  out  the  land,"  the  agent  can 
not,  having  made  no  sales,  recover  on  a  quantum  meruit  for  the 
services.  Gilbert  v.  Judson,  85  Cal.  105. 

Though  a  contract  for  a  broker's  services  is  required  by  the 
Code  to  be  in  writing,  subscribed  by  the  party  to  be  charged, 
or  his  agent,  in  order  to  be  valid,  such  fact  does  not  preclude 
a  recovery  on  complete  performance  on  a  quantum  meruit. 
Blankenship  v.  Decker,  34  Mont.  292,  85  P.  1035.  This  is  a 


PLEADINGS,  PRACTICE,  ETC.  555 

departure  from  the  general  rule.  Blair  v.  Austin,,  71  Neb.  401, 
98  N.  W.  1040;  Eodenbrock  v.  Gress,  74  Neb.  409,  104  N.  W. 
758 ;  Barney  v.  Lasbury,  76  Neb.  701 ,  107  N.  W.  989 ;  Stout  v. 
Humphrey,  69  N.  J.  L.  436,  55  A.  281 ;  Leimbach  v.  Regner,  70 
N.  J.  L.  608,  57  A.  138 ;  Goldstein  v.  Scott,  78  N.  Y.  S.  736, 
76  App.  Div.  78  (N.  J.  Law  applied). 

Defendant  contracted  to  give  plaintiff  the  right  for  sixty 
days  to  sell  its  property  at  not  less  than  a  stated  price,  plain- 
tiff to  have  any  excess.  Plaintiff  transferred  the  option,  and 
the  transferees  secured  a  man  to  look  at  the  property  after 
the  expiration  of  the  option,  but  who  refused  to  buy  at  the 
price  named,  and  on  their  notifying  defendant,  defendant  sold 
to  him  at  a  smaller  price.  Held,  that  the  plaintiff  could  not 
recover  on  a  quantum  meruit  for  the  services  rendered,  having 
failed  to  fulfill  the  condition  which  alone  entitled  him  to  pay- 
ment for  his  services.  Johnson  v.  Va.  &  Car,  Lumber  Co.,  163 
F.  249,  89  C.  C.  A.  632 ;  Smith  v.  Va.  &  Car.  Lumber  Co:,  163 
F.  249,  89  C.  C.  A.  632.  Compare  Sec.  557. 

Where  the  contract  between  the  owner  of  real  estate  and  a 
broker  employed  to  sell  the  same  is  void  because  not  in  writing 
as  required  by  the  statute,  the  broker  can  not  recover  on  a 
quantum  meruit  for  services  rendered  in  accordance  with  the 
contract,  nor  for  the  value  of  his  time  expended  in  that  behalf. 
Nelson  v.  Webster,  83  Neb.  169.  119  N.  W.  256;  Barney  v. 
Lasbury,  76  Neb.  701,  107  N.  W.  989. 

A  petition  alleged  the  employment  of  plaintiff  to  find  a  pur- 
chaser for  land  and  assist  in  effecting  a  sale  for  an  agreed 
compensation,  but  that  after  the  purchaser  had  been  procured, 
and  before  a  sale  was  effected,  the  land  owner  wrongfully  re- 
pudiated the  contract  and  completed  the  sale  to  the  purchaser, 
and  that  the  land  owner  had  died  since  the  sale,  and  that,  by 
reason  of  his  death,  plaintiffs  had  become  incompetent  to  tes- 
tify to  conversations  and  transactions  with  him,  and  therefore 
unable  to  prove  the  contract,  and  that  by  reason  of  the  prem- 
ises had  elected  to  sue  on  a  quantum  meruit  for  the  value  of 
their  services,  instead  of  the  compensation  agreed  on,  states 
a  good  cause  of  action  upon  a  quantum  meruit,  and  is  not  de- 
feated because  of  the  unnecessary  explanatory  references  to 
the  special  contract,  and  plaintiff's  incapacity  to  establish  their 


556  AMERICAN  LAW  HEAL   ESTATE   AGENCY. 

claim  thereunder.  Templeton  v.  Biegert  (Kan.  Sup.  '09),  100 
P.  654. 

Bankrupt  agreed  to  pay  claimant  $10,000  commission  for  a 
sale  of  certain  timber  land  to  a  specified  person  for  $200,000; 
claimant  made  various  efforts  to  effect  a  sale,  but  was  unsuccess- 
ful, and  thereafter  the  price  was  modified,  and,  with  independent 
assistance,  a  sale  was  made  to  the  purchaser  named  for  $130,000. 
Held,  that  the  broker  having  been  regarded  by  his  principal  as 
instrumental  in  the  consummation  of  the  sale  was  entitled  to 
compensation  for  the  reasonable  value  of  his  services.  In  re 
Breen  Lumber  Co.,  181  F.  909. 

A  broker  pleading  as  one  cause  of  action  the  reasonable  value 
of  his  services  may  show,  to  recover  the  same,  though  there  was 
no  express  promise,  that  there  was  an  agency  and  an  appropria- 
tion of  his  services  thereunder.  Phoenix  Securities  Co.  v.  Ditt- 
mar,  224  F.  892,  140  C.  C.  A.  336. 

Owners'  telegram  to  broker  stating  that  a  purchaser  had  wired 
an  offer  for  the  land  asking  for  further  information  as  to  such 
purchaser  and  the  terms  under  which  he  would  buy,  and  advis- 
ing broker  that  they  would  be  inclined  to  sell  if  they  could  get 
specified  price  net,  did  not  bind  owners  to  pay  broker  as  commis- 
sion everything  he  could  procure  over  such  price,  further  action 
being  necessary  on  the  part  of  owners  to  make  them  liable  even 
on  quantum  meruit.  Parker  v.  Lindsay,  176  "N.  W.  1018,  — 
S.  D.  — . 

Where  no  price  is  agreed  upon  between  the  seller  of  real  estate 
and  his  broker  who  is  engaged  to  exchange  his  property  for  other 
property  as  basic  value,  and  no  compensation  for  services  is 
agreed  upon,  the  measure  of  recovery  in  broker's  action  for  com- 
pensation will  be  the  reasonable  value  of  the  services  rendered 
as  shown  by  the  ordinary  and  customary  charges  for  like  services 
in  the  community.  Morrison  v.  Jackson,  85  S.  573,  —  Ala. 
App.  — . 

Where  the  amount  of  broker's  compensation  for  services  in  ef- 
fecting an  exchange  of  lands  is  not  agreed  on,  the  fair  market 
value  of  the  property  exchanged,  or  offered  for  exchange,  would 
be  competent  and  relevant,  but  not  necessarily  controlling,  on 
the  question  of  the  reasonable  value  of  the  services  rendered.  Id. 

A  broker  who  introduced  the  purchaser  to  the  seller  can  not 


PLEADINGS,  PRACTICE,  ETC.  557 

recover  from  the  seller  any  compensation  on  a  quantum  meruit, 
unless  there  is  proof  of  an  agency,  express  or  implied.  Ooetz  v. 
Herman,  111  A.  235,  —  Del.  Super.  — . 

Sec.  588.    Broker  has  a  right  of  action  against  defaulting 

purchaser  for  lost  commissions. 

A  real  estate  broker  may  sue  the  purchaser  who  employed 
him  and  who  has  refused  to  carry  out  his  contract  with  the 
vendor,  whereby  the  broker  has  lost  his  right  to  a  commission, 
and  this,  although  he  had  agreed  to  look  to  the  vendor  for 
the  commission.  Livermore  v.  Crane,  26  Wash.  529,  67  P.  221, 
57  L.  R.  A.  401.  Compare  Sec.  425. 

Sec.  588a.    Broker's  right  to  recover  from  vendee  price  paid 
for  property  purchased  for  him. 

Where  a  broker  purchases  property,  without  disclosing  the 
name  of  his  principal,  he  becomes  liable  personally  for  the 
price,  and  he  can  collect  such  price  from  his  principal,  unless 
the  latter  can  show  payment  to  the  vendor  or  a  release  from 
the  broker;  and  it  is  immaterial  whether  the  broker  disclosed 
to  the  vendor  that  he  was  acting  as  an  agent  only.  Knapp  v. 
Simon,  96  N.  Y.  S.  284;  Mechem  on  Ag.,  Sec.  653. 
Sec.  589.  No  right  in  equity  arises  out  of  a  verbal  contract 
for  the  sale  of  land. 

Where  a  person  assumed,  without  authority,  to  act  as  agent 
for  the  sale  of  real  estate,  and  the  contract  is  merely  verbal, 
the  person  injured  by  relying  on  such  representations  has  no 
remedy  in  equity  against  him  for  damages  on  the  ground  of 
part  performance.  Warr  v.  Jones,  24  Weekly  Rep.  Gas.  (Eng.) 
695. 

Sec.  590.    Statute  of  frauds. 

A  contract  for  the  purchase  or  sale  of  lands  for  another,  not 
being  for  the  sale  of  land  but  for  personal  services,  will  not 
be  offensive  to  the  statute  of  frauds,  because  not  in  writing. 
Ivy  Coal  Co.  v.  Long,  139  Ala.  535,  36  S.  722;  Stephens  v- 
Bailey,  149  Ala.  256,  42  S.  740 ;  Monroe  v.  Snow,  131  111.  126, 
23  N.  E.  401;  Ward  v.  Lawrence,  79  111.  295;  Fox  v.  Starr, 
106  111.  App.  273;  Collins  v.  Smith,  18  111.  160,  162;  Watson 


558  AMERICAN   LAW  REAL   ESTATE  AGENCY. 

v.  Sherman,  84  111.  263,  267;  Fisher  v.  Bell,  91  Ind.  243;  Talbot 
v.  Bowen,  A.  K.  Mar.  (Ky.)  436;  Houston  v.  Boagni,  McGloin 
(La.),  164;  Hamilton  v.  Frothingham,  59  Mich.  253,  26  N.  W. 
486;  Waterman  R.  E.  Ex.  v.  Stephens,  71  Mich.  104,  38  N.  W. 
685;  Hancock  v.  Dodge,  85  Miss.  228,  37  S.  711;  Gwinnup  v. 
Sibert,  106  Mo.  App.  709,  80  S.  W.  589;  Riley  v.  Minor,  29 
Mo.  App.  439;  Worrell  v.  Munn,  5  N.  Y.  229;  Wilson  v.  Clark, 
35  Tex.  Civ.  App.  92,  79  S.  W.  649 ;  Yearly  v.  Grigsby,  9  Leigh 
(Va.),  387. 

In  some  States,  by  statute,  a  contract  with  a  broker  to  pur- 
chase or  sell  land,  must  be  in  writing — Arkansas,  California, 
Idaho,  Indiana,  Missouri,  Nebraska,  New  Jersey,  New  York,  Ore- 
gon, South  Dakota,  Illinois,  Washington.  Wysing  v.  Sills  (Ind. 
App.  '09),  88  N.  E.  954;  Farland  v.  Boyum  (Wash.  Sup.  '09), 
102  P.  34;  McCarthy  v.  Loupe,  62  Cal.  299,  10  P.  C.  L.  J.  562; 
Pacific  Land  &  Trust  Co.  v.  Blochman,  11  P.  C.  L.  J.  24;  Per- 
Tcins  v.  Cooper  (Cal.  Sup.  '90),  24  P.  377;  Bissell  v.  Terry,  69 
111.  184;  Rothwell  v.  Gibson,  121  Mo.  App.  279,  98  S.  W.  801; 
Kesner  v.  Miesch,  204  111.  320,  68  N.  E.  405 ;  Milne  v.  Kleb,  44 
N.  J.  Eq.  378,  14  A.  646,  810;  Finley  v.  Hanley,  121  Mo.  App. 
358,  98  S.  W.  803;  Mendles  v.  Danish,  74  N.  J.  L.  333,  65  A. 
888;  Briggs  v.  Bounds,  48  Wash.  579,  94  P.  101;  Danielson  v. 
Goebel,  71  Neb.  300,  98  N.  W.  819;  McGury  v.  Satchwell,  129 
Cal.  389,  62  P.  58;  Dotson  v.  Toole,  129  Cal.  488,  62  P.  92; 
Waiters  v.  Dancey  (S.  D.  '09),  122  N.  W.  430;  Heyman  v. 
Stopper,  91  A.  1069,  86  N.  J.  Law,  357,  aff.  judg.,  88  A.  946,  85 
N.  J.  Law,  128 ;  Shaw  v.  Corbett,  185  P.  585,  —  Or.  Sup.  — . 

Where  plaintiff,  at  defendant's  request,  procured  the  title 
to  real  estate,  taking  it  in  his  own  name,  and  afterward  con- 
veyed it  to  defendant,  defendant's  agreement  to  pay  him  for 
his  services  one-half  of  the  sum  for  which  the  real  estate  might 
be  sold,  is  not  within  the  statute  of  frauds.  Huff  v.  Hardwick, 
19  Colo.  App.  416,  75  P.  593. 

A  broker  who  has  made  a  parol  contract  of  sale  of  realty 
can  not,  after  his  principal  has  contracted  to  sell  the  land  to 
another  purchaser  and  has  so  informed  the  broker,  make  such 
a  memorandum  as  will  take  the  case  out  of  the  operation  of  the 
statute  of  frauds.  Elliott  v.  Barrett,  144  Mass.  256,  10  N.  E. 
820. 


PLEADINGS,  PRACTICE,  ETC.  559 

Under  Civil  Code,  Sec.  1624,  Sub.  6,  requiring  that  a  bro- 
ker's authorization  to  sell  shall  be  in  writing,  a  memorandum 
of  authority  is  not  fatally  defective  because  it  did  not  recite 
the  terms  of  sale  and  amount  of  payments.  Baird  v.  Loescher, 
(Cal.  App.  '08),  98  P.  40. 

In  an  action  to  recover  commissions  for  selling  realty  owned 
by  defendant  and  K.,  the  plaintiff  alleged  that  in  offering  the 
property  for  sale  defendant  acted  as  agent  for  K.,  and  as  such 
agent  made  an  oral  agreement  to  pay  plaintiff  a  reasonable 
commission  for  selling  the  property.  Civil  Code,  Sec.  1624,  re- 
quires agreements  authorizing  the  sale  of  realty,  or  some  memo- 
randum thereof,  to  be  in  writing  and  signed  by  the  party  to 
be  charged  or  his  agent.  Held,  that,  conceding  that  the  bro- 
ker could  contract  orally  with  another  as  to  the  compensa- 
tion he  was  to  receive  from  the  owner  for  selling  realty,  the 
plaintiff  did  not  allege  any  written  contract  by  defendant  with 
K.,  and  hence  he  was  entitled  to  no  compensation  which  could 
be  the  subject  of  an  oral  contract  with  plaintiff ;  so  that  whether 
the  complaint  charged  defendant  individually  or  as  agent  for 
K.,  the  oral  agreement  with  plaintiff  for  commissions  was  in- 
valid. Aldis  v.  Schleicher,  9  Cal.  App.  372,  99  P.  526. 

The  provisions  of  the  statute  of  frauds  which  require  the 
authority  for  selling  land  as  a  basis  for  a  broker's  commission 
to  be  in  writing,  signed  by  the  owner  or  his  authorized  agent, 
is  not  complied  with,  where  the  person  who  signed  is  neither 
the  owner  nor  his  authorized  agent.  Ryer  v.  Winter  (N.  J. 
Sup.  '09),  72  A.  84. 

A  declaration  which  sets  out  that  defendant  employed  plain- 
tiff to  sell  real  estate,  and  a  promise  by  the  defendant  to  pay 
for  such  services,  need  not  set  out  that  the  authority  for  selling 
and  the  statement  of  the  rate  of  commissions  were  in  writing, 
as  a  statutory  requirement  to  that  effect  is  a  matter  of  evidence 
only.  Adams  v.  Grady  (N.  J.  Sup.  '09),  72  A.  55. 

Burns'  Annotated  Statutes,  1908,  Sec.  7463,  provides  that 
no  contract  for  the  payment  of  a  commission  to  a  broker  for 
securing  a  purchaser  for  real  estate  shall  be  valid,  unless  in 
writing  signed  by  the  owner.  Held,  that  the  fact  that  a  bro- 
ker has  fully  performed  his  part  of  the  contract  does  not  take 
the  case  out  of  the  statute.  Price  v.  Walker  (Ind.  App.  '09), 


560  AMERICAN   LAW  REAL   ESTATE   AGENCY. 

88  N".  E.  78.   Compare  Muir  v.  Kane  (Wash.  Sup.  '09),  104  P.  153. 

A  contract  whereby  a  broker  was  to  procure  a  purchaser 
for  real  estate  and  also  for  personal  property  was  within  the 
statute.  Price  v.  Walker  (Ind.  App.  '09),  88  N.  E.  78. 

Since  the  statute  renders  invalid  a  contract  for  the  payment 
of  commissions  for  procuring  a  purchaser  for  real  estate,  un- 
less the  contract  be  in  writing,  signed  by  the  owner,  an  oral 
contract  within  the  statute,  though  valid  in  the  State  where 
made,  can  not  be  enforced  in  Indiana.  Price  v.  Walker  (Ind. 
App.  '09),  88  N.  E.  78. 

Though  the  statute  provides  that  any  agreement  authorizing 
an  employe  as  an  agent  or  broker  to  sell  or  purchase  real  es- 
tate for  a  commission  shall  be  void  unless  the  agreement  or 
promise,  or  some  note  or  memorandum  thereof,  be  in  writing, 
where  the  broker  sells  the  land  under  an  oral  agreement  au- 
thorizing the  service,  the  moral  obligation  of  the  owner  to  pay 
for  the  services  is  sufficient  to  sustain  a  subsequent  written 
agreement  to  pay  therefor.  Muir  v.  Kane  ("Wash.  Sup.  '09), 
104  P.  153.  Compare  Price  v.  Walker  (Ind.  App.  '09),  88  N.  E. 
78. 

A  modification  of  a  written  contract  employing  a  broker 
to  procure  a  purchaser  of  real  estate  for  $5,000,  at  a  commis- 
sion of  five  per  cent.,  by  authorizing  the  broker  to  sell  for  $4,500, 
is  material,  and  under  Burns'  Ann.  Stat.,  1908,  Sec.  7463, 
providing  that  no  contract  for  the  payment  of  commissions  for 
procuring  a  purchaser  shall  be  valid  unless  the  same  is  in  writ- 
ing, signed  by  the  owner,  an  action  does  not  lie  on  the  altered 
contract  unless  the  alteration  is  evidenced  by  a  writing  signed 
by  the  owner.  Wellinger  v.  Crawford  (Ind.  App.  '09),  89  N. 
E.  892. 

Under  a  statute  providing  that  any  agreement  authorizing  a 
broker  to  sell  or  purchase  real  estate  for  commissions  shall  be 
void  unless  the  agreement,  or  some  memorandum  thereof  is  in 
writing  signed  by  the  parties  to  be  charged  therewith,  a  memo- 
randum which  authorizes  no  broker,  describes  no  real  estate, 
contains  no  agreement  for  the  payment  of  commissions,  and 
is  not  signed  by  the  parties,  is  insufficient.  Swartswood  v. 
Naslin  (Wash.  Sup.  '10),  106  P.  770. 

An  agreement  by  a  broker  to  give  a  purchaser  of  land  his 


PLEADINGS,  PBACT1CE,  ETC.  561 

commissions  is  not  within  the  statute  of  frauds.  Spengeman 
v.  Palestine  Bdg.  Ass'n,  60  N.  J.  L.  357,  37  A.  723.  An  agent 
who  has  invested  his  principal's  money  in  land  and  taken  the 
title  in  his  own  name,  will  not  be  allowed  to  set  up  the  statute 
of  frauds  against  the  enforcement  of  the  trust,  on  the  ground 
that  the  agency  was  without  written  authority.  Firestone  v. 
Firestone,  49  Ala.  128 ;  Lopsed  v.  Fritz,  91  N.  Y.  S.  5,  45  Misc. 
620.  A  memorandum  signed  by  the  auctioneer  selling  real  es- 
tate, describing  the  land  sold  and  stating  the  terms  of  sale, 
binds  both  buyer  and  seller,  and  is  a  compliance  with  the  stat- 
ute of  frauds.  Garth  v.  Davis,  27  Ky.  L.  K.  505,  85  S.  W.  692. 

The  full  performance  by  the  broker  of  an  oral  contract  to  sell 
land  for  another  on  commission,  does  not  take  the  contract  out 
of  the  statute  of  frauds.  L.  0.  L.  Sec.  808;  Taylor  v.  Peterson, 
147  P.  520,  76  Or.  77;  Lueddeman  v.  Rudolph,  155  P.  172,  79 
Or.  249,  den.  re.,  154  P.  116,  79  Or.  249. 

If  a  broker  procure  a  purchaser  able  and  willing  to  purchase 
as  agreed,  the  fact  that  the  purchaser's  contract  with  the  owner 
was  not  enforceable  under  the  statute  of  frauds  would  not  pre- 
vent recovery  of  commissions.  Allgood  v.  Fahrney,  146  N.  W. 
42,  164  Iowa,  540;  Goldsberry  v.  Eades,  142  S.  W.  1080,  161  Mo. 
App.  8. 

Oral  agreement  for  performing  services  connected  with  buying 
and  selling  realty  to  be  compensated  out  of  the  profits  of  real 
estate  when  realized,  especially  where  extending  over  an  indefinite 
period  of  time,  while  not  within  the  letter  of  the  statute  of 
frauds,  is  tainted  with  the  evil  at  which  it  is  aimed.  Thompson 
v.  Hurson,  167  N.  W.  926,  201  Mich.  685. 

Contract  employing  a  broker  to  negotiate  a  sale  of  land  to 
merely  entitle  him  to  a  commission  need  not  be  in  writing  under 
the  general  statute  of  frauds,  though  it  must  be  for  him  to  exe- 
cute a  binding  contract  of  sale.  Vral)lae  v.  Kacurelc,  199  S.  W. 
876,  —  Tex.  Civ.  App.  — . 

Eem.  Code  1915,  Sec.  5289,  subd.  5,  requiring  contracts  em- 
ploying a  broker  to  sell  real  estate  to  be  in  writing;  held,  not  to 
apply  where,  at  the  time  of  employment  to  sell,  employer  had 
only  an  unaccepted  option  for  the  purpose  of  exclusive  right  to 
sell,  and  so  was  not  owner.  Maloney  v.  Montana  Ranches  Co., 
170  P.  567,  —  Wash.  Sup.  — . 


562  AMERICAN   LAW   EEAL   ESTATE   AGENCY. 

By  Statute  of  Frauds,  L.  0.  L.  Sec.  808,  subd.  8,  writing  em- 
ploying a  broker  to  sell  or  exchange  realty  must  state  the  amount 
of  commission  agreed  to  be  paid.  Oregon  Home  Builders  v. 
Crowley,  170  P.  718,  87  Or.  517,  re.  den.,  171  P.  214,  87  Or.  517. 

Writing  signed  by  owner  employing  corporation  to  procure  an 
exchange  reading,  "and  agree  to  pay  as  commission  2^%  of 
selling  price  off  price  for  which  property  was  sold,  or  at  which 
it  exchanged,"  satisfied  statute  of  frauds,  L.  0.  L.,  Sec.  808, 
subd.  8,  by  expressing  consideration.  Id. 

Where  corporate  realty  broker  effected  an  exchange  of  prop- 
erty, it  converted  employer's  promise  to  pay  commission  into 
obligation  to  pay,  and  transferred  into  binding  agreement  satis- 
fying the  statute  of  frauds,  L.  0.  L.,  subd.  8,  employer's  written 
offer  to  pay  for  services.  Id. 

Correspondence  held  not  /to  show  a  contract  of  employment  of 
plaintiff  by  defendant,  as  his  broker  to  sell  land,  within  L.  0.  L., 
Sec.  808,  requiring  written  memorandum  of  such  contract  ex- 
pressing the  consideration.  Gt.  Western  Land  Co.  v.  Waite,  171 
P.  193,  87  Or.  488,  den.  re.,  168  P.  927,  87  Or.  488. 

Under  L.  0.  L.,  Sec.  808,  subd.  8,  requiring  broker's  contract 
to  buy  or  sell  to  state  consideration,  the  consideration,  while  it 
must  be  expressed,  need  not  be  formally  and  precisely  expressed, 
and  is  expressed  if  it  appears  by  necessary  inference.  Oregon 
Home  Builders  v.  Crowley,  171  P.  214,  87  Or.  517,  den.  re.,  170 
P.  718,  87  Or.  517. 

A  writing  offered  may  constitute  a  sufficient  memorandum  of 
a  broker's  contract  required  by  L.  0.  L.,  Sec.  808,  subd.  8,  to 
charge  the  party  making  it,  if  it  is  later  accepted  by  parol.  Id. 

Correspondence  between  realty  brokers  and  officer  of  bank  and 
sale  by  bankers;  held,  insufficient  to  satisfy  the  statute  of  frauds 
as  to  contract  for  commissions.  Larne  v.  Farmers  &  Mechanics 
Bank,  172  P.  1146,  —  Wash.  Sup.  — . 

A  contract  to  pay  a  broker  commissions  for  procuring  a  pur- 
chaser of  land,  to  be  enforceable,  must  be  wholly  in  writing,  un- 
der Burns's  Ann.  Stat.  1914,  Sec.  7463,  a  contract  partly  in 
writing  and  partly  in  parol  being  insufficient.  Peters  v.  Martin, 
122  N.  E.  16,  —  Ind.  App.  — . 

The  provision  of  the  statute  of  frauds  ithat  refers  to  oral  agree- 
ments for  the  sale  of  interests  in  land  does  not  affect  an  agent's 


PLEADINGS,  PRACTICE,  ETC.  563 

right  to  compensation  for  selling  land  pursuant  to  oral  instruc- 
tions. Cook  v.  Smith,  80  S.  777,  119  Miss.  375. 

The  manifest  purpose  of  Burns's  Ann.  Stat.  1914,  Sec.  7463, 
relating  to  commissions  of  real  estate  agents,  is  to  protect  real 
estate  owners  against  imposition  and  fraud,  and  not  to  enable 
such  owners  to  work  the  same  result  against  others,  so  that  the 
operation  of  the  statute  should  not  be  extended  further  than  to 
make  its  spirit  and  purpose  effective.  Stockberger  v.  Zane,  125 
N.  E.  65,  —  Ind.  App.  — . 

Broker's  employment  contract  authorizing  a  broker  "to  sell  the 
property  hereinafter  described,  to-wit,  40  acres  at  Forrest,  lo- 
cated in ,  for  the  sum,  etc."  Held,  not  to  entitle  broker 

to  recover  commissions,  on  owner  refusing  to  perform  by  selling 
property  to  procured  purchaser,  the  description  being  insufficient 
under  the  statute  of  frauds.  Big  Four  Land  Co.  v.  Daracunas, 
190  P.  229,  —  Wash.  Sup.  — . 

Statute  of  frauds,  Sec.  10,  as  amended  by  act,  May  1,  1911 
(P.  L.,  p.  703),  Sec.  1,  declaring  that  no  broker  selling  land  for 
an  owner  shall  be  entitled  to  a  commission  for  the  sale  unless 
authority  for  selling  is  in  writing,  signed  by  the  owner,  or  is 
recognized  in  a  writing  or  memorandum  signed  by  the  owner, 
whether  or  not  such  writing  or  memorandum  be  signed  before  or 
after  the  sale  has  been  effected,  is  satisfied  by  a  recital  in  the 
agreement  of  sale  executed  by  the  owner,  but  not  delivered  to 
the  purchaser,  that  "K"  is  recognized  as  the  broker  negotiating 
the  sale,  and  that  party  of  the  first  part  agrees  to  pay  a  specified 
commission."  Kelly  v.  Demorest,  111  A.  273,  —  N.  J.  Sup. — . 

Sec.  591.    Real  estate  agent  not  liable  for  failure  to  remove 

snow  from  sidewalk. 

Real  estate  agents,  whose  agency  is  restricted  to  the  collec- 
tion of  rents  of  property  or  the  soliciting  and  submission  of 
offers  to  purchase,  are  not  within  the  meaning  of  an  act  of 
Congress  requiring  the  owner,  agent  or  tenant  of  real  estate 
within  the  district  to  remove  snow  and  ice  from  paving  side- 
walks in  front  of  their  property,  and  are  therefore  not  liable 
to  the  penalties  of  that  statute.  Holtzman  v.  U.  8.,  14  App. 
(D.  C.)  454. 


564  AMERICAN  LAW  EEAL  ESTATE   AGENCY. 

Sec.  592.    Seals,  and  the  necessity  for  their  use. 

A  real  estate  agent  whose  authority  is  first  put  in  writing 
in  a  contract  for  a  sale  between  the  vendor  and  vendee  which 
is  not  under  seal,  can  not  recover  commissions  for  the  sale. 
Alpern  v.  Klein  (N.  J.  Sup.  '08) ,  68  A.  799. 

It  requires  an  instrument  under  seal  to  ratify  the  unauthor- 
ized deed  of  an  agent.  Spofford  v.  Hobbs,  29  Me.  148;  Drum- 
right  v.  Philpot,  16  Ga.  424;  Reese  v.  Medlock,  27  Tex.  120. 

Where  the  act  of  the  principal  is  required  to  be  done  in  the 
name  of  the  principal,  the  authority  to  do  the  act  must  be 
conferred  by  an  instrument  under  seal.  Mitchell  v.  Sprout,  5 
J.  J.  Marsh.  (Ky.)  264;  Clark  v.  Graham,  6  Wheat.  (U.  S.) 
577 ;  Butterfield  v.  Beall,  3  Ind.  203. 

In  Illinois  a  power  of  attorney  not  under  seal  will  be  suffi- 
cient to  authorize  the  attorney  to  sell  land,  but  not  to  make 
a  conveyance.  Watson  v.  Sherman,  84  111.  263,  267.  See  also 
Sec.  57. 

A  contract  under  seal  between  the  vendor  and  vendee  contained 
a  provision  that  plaintiffs  were  recognized  by  the  vendor,  the  de- 
fendant, as  the  brokers  in  the  transaction  and  entitled  to  a  com- 
mission; held,  that  the  plaintiffs  could  recover  the  specified  com- 
mission, whether  the  contract  was  one  made  between  others  for 
their  benefit  or  a  contract  between  plaintiffs  and  defendant. 
Tapscott  v.  McVey,  81  A.  348,  82  N.  J.  Law,  35,  judg.  aff.,  85 
A.  343,  83  N.  J.  Law,  747. 

Sec.  593.    When  tender  of  written  agreement  by  purchaser  not 
necessary. 

The  broker  is  not  obliged  to  cause  the  party  willing  to  pur- 
chase to  tender  to  the  seller  a  written  agreement  to  that  effect. 
Cook  v.  Kroemeke,  4  Daly  (N.  Y.),  268. 

Sec.  594.     Employment  of  broker  to  measure  land  does  not  sus- 
tain claim  of  broker  for  selling. 

Evidence  that  testator  employed  claimant,  a  real  estate  bro- 
ker, to  procure  persons  to  go  on  certain  premises,  measure 
them  and  look  at  them,  for  the  purpose  of  inducing  the  tenant 
to  believe  that  they  intended  to  purchase,  does  not  support  a 
verified  claim  for  commissions  on  a  sale  of  the  house  for  tes- 
tator. Von  Hermanni  v.  Wagner,  30  N.  Y.  S.  991,  81  Hun,  431. 


PLEADINGS,  PRACTICE,  ETC.  565 

Sec.  595.    Where  title  taken  by  broker  to  land  purchased,  prin- 
cipal may  tender  amount  and  demand  deed. 

Where  a  broker  acting  for  his  principal  has  taken  the  title 
to  land  purchased  in  his  own  name,  the  principal,  on  tendering 
the  amount  paid  for  the  land  and  an  amount  sufficient  to  com- 
pensate the  agent  for  his  services,  and  a  deed  for  him  to  exe- 
cute and  demand  execution  thereof,  the  agent  refusing,  may 
recover  the  land  in  ejectment.  Rose  v.  Hayden,  35  Kan.  106. 
Contra,  Burden  v.  Sheridan,  36  Iowa,  125;  Dorsey  v.  Clark, 
4  Harr.  &  J.  (Md.)  551.  Compare  Sec.  368. 


Sec.  596.    When  not  necessary  for  broker  to  show  vendor  had 
a  clear  title. 

Where  defendant  did  not  base  his  refusal  to  carry  out  an 
agreement  to  purchase  property  upon  any  invalidity  of  the 
owner's  title,  it  was  not  necessary  for  the  broker,  in  suing  for 
the  commissions  for  negotiating  the  purchase,  to  show  that  the 
title  was  clear.  Hanna  v.  Espella,  148  Ala.  313,  42  S.  443.  See 
Sec.  839. 


Sec.  596a.  Broker  entitled  to  commission  under  contract  upon 
corporate  employer  acquiring  title  to  land. 

Where  a  contract  employing  brokers  to  purchase  in  entire 
allotments,  providing  for  commissions  on  corporation  securing 
title  through  some  other  source,  the  brokers'  commissions  were 
earned  on  the  corporation  acquiring  title  from  another  source, 
within  the  time  limited,  though  the  price  was  in  excess  of  that 
the  brokers  were  authorized  to  offer.  Lord  v.  Wapato  Irr.  Co., 
142  P.  1172,  81  Wash.  561,  aff.  on  re.,  152  P.  329,  84  Wash.  696. 

Sec.  596b.  Marketable  title  in  fee  simple  necessary  to  give 
broker  right  to  commission,  in  absence  of  binding  con- 
tract with  purchaser. 

A  marketable  title  in  fee  simple  to  property  desired  to  be  pur- 
chased by  a  principal  is  necessary  to  sustain  a  broker's  claim  for 


566  AMERICAN  LAW  REAL  ESTATE   AGENCY. 

commissions,  when  the  purchaser  has  not  entered  into  a  binding 
contract  to  purchase.  Kinney  v.  Eckenberger,  145  P.  665,  74 
Or.  442. 

Sec.  597.  Contract  of  sale  requiring  owner  to  furnish  ab- 
stract of  title  not  within  authority  of  broker. 
"Where,  in  an  action  by  a  broker  for  commissions  in  procuring 
a  purchaser  for  a  tract  of  land,  it  appeared  that  the  contract 
of  employment  only  fixed  the  price,  and  that  the  broker  exe- 
cuted a  contract  of  sale  binding  the  owner  to  furnish  an  ab- 
stract of  title,  an  instruction  that  if  the  owner  entered  into 
the  contract  by  which  he  authorized  the  broker  to  sell  the  land 
at  the  price  named,  and  the  broker  entered  into  a  contract  for 
the  sale  thereof  at  the  price  named,  to  a  person  ready,  able 
and  willing  to  pay  therefor,  he  was  entitled  to  his  commissions, 
was  erroneous,  on  the  issue  whether  the  sale  made  by  the  bro- 
ker was  on  the  terms  on  which  he  was  authorized  to  effect  a 
sale.  Hunt  v.  Tuttle,  133  Iowa,  647,  110  N.  W.  1026.  See  ref- 
erences under  Sec.  307. 

Sec.  598.    A  custom  or  usage  must  be  general  before  a  court 

will  declare  its  existence  as  a  matter  of  law. 
The  existence  of  a  custom  or  usage  to  the  effect  that  the 
broker  shall  be  entitled  to  commissions  in  the  event  that  his 
principal  declines  to  complete  the  transaction  negotiated,  will 
not  be  declared  by  the  court  as  a  matter  of  law,  unless  it  is 
notorious  and  universal.  Durkee  v.  Vermont  Cen.  R.  Co.,  29 
Vt.  127.  See  also  Sec.  626. 

Sec.  599.    Where  a  usage  is  proved,  the  law  raises  a  presump- 
tion that  the  agent  contracted  with  reference  thereto. 

Where  the  evidence  adduced  is  sufficient  to  prove  that  the 
usage  among  real  estate  agents  is  general,  the  law  raises  a  pre- 
sumption that  the  agent  knew  the  usage  and  contracted  with 
reference  to  it.  Cameron  v.  McNair,  76  Mo.  App.  366.  See 
also  Sec.  626. 


PLEADINGS,  PRACTICE,  ETC.  567 

Sec.  600.    Unconstitutionality  of  statute  requiring  contract  em- 
ploying broker  to  be  in  writing. 

Penal  Code  providing  that  in  cities  of  the  first  and  second 
class  any  person  offering  for  sale  real  property  without  writ- 
ten authority  shall  be  guilty  of  a  misdemeanor,  is  unconsti- 
tutional, as  improperly  abridging  the  rights  and  privileges  of 
citizens  of  one  portion  of  the  State  with  respect  to  a  matter 
of  contracts.  Cody  v.  Dempsey,  83  N.  Y.  S.  899,  86  App.  Div. 
335 ;  Grossmann  v.  Cominez,  79  N.  Y.  S.  900,  79  App.  Div.  15. 
Statutes  requiring  such  contracts  to  be  in  writing,  in  other 
States  upheld.  Baker  v.  Gillan,  68  Neb.,  368,  94  N.  W.  615; 
City  of  St.  Louis  v.  McCann,  157  Mo.  301,  57  S.  W.  1016 -,  Eleine 
v.  Marjorie  Realty  Co.,  128  S.  W.  980,  228  Mo.  607;  Printz  v. 
Mill,  135  S.  W.  19,  233  Mo.  47. 

Sec.  601.    Undisclosed  principal. 

Plaintiffs,  as  brokers,  entered  into  a  contract  for  the  pur- 
chase from  defendant  of  certain  bonds,  claiming  to  act  for  an 
undisclosed  principal  and  stipulating  that  they  should  in  no 
manner  be  held  liable  on  the  contract  which,  as  they  had  rea- 
son to  believe,  was  made  by  defendant  under  a  misapprehension 
as  to  the  value  of  the  bonds ;  in  fact,  they  were  acting  for  them- 
selves, and  there  was  no  other  principal.  Held,  that  they  could 
not  maintain  an  action  on  the  contract;  not  as  agents  for  an 
undisclosed  principal,  because  no  such  principal  existed,  nor 
as  principals,  because  by  their  fraudulent  misrepresentations 
they  had  secured  immunity  from  liability  on  the  contract  as 
such,  and  estopped  themselves  from  claiming  rights  which  were 
correlative  with  such  liability.  Paine  v.  Loeb,  96  Fed.  164,  37 
C.  C.  A.  434. 

Defendant  agreed  to  furnish  to  a  broker  a  certain  amount  of 
money  to  be  used  in  the  purchase  of  a  mine  which  was  to  be 
conveyed  to  a  corporation  to  be  formed,  in  which  defendant 
was  to  have  a  certain  share  of  the  stock,  the  money  advanced 
to  be  repaid  to  him  from  the  profits ;  the  broker  purchased  the 
mine,  in  accordance  with  the  agreement,  making  a  cash  pay- 
ment thereon,  wThich  was  furnished  by  defendant,  and  executed 
his  own  notes  for  the  deferred  payments,  defendant  not  being 
known  in  the  transaction  with  the  seller.  Held,  that  the  bro- 
ker and  not  the  defendant  was  the  purchaser,  and  that  de- 


568  AMEBICAN  LAW  EEAL  ESTATE  AGENCY. 

fendant  could  not  be  held  liable  on  the  note  as  an  undisclosed 
principal.  Krohn  V.  Lambeth,  114  Cal.  302,  46  P.  164.  Com- 
pare Harper  v.  Nat.  Bank,  54  0.  S.  425.  See  also  Sec.  583. 

One  acting  as  agent  of  an  undisclosed  principal  may  be 
treated  as  the  principal  by  the  party  with  whom  he  deals. 
Welch  v.  Goodwin,  123  Mass.  71;  Pentz  v.  Stanton,  10  Wend. 
271;  Bickford  v.  First  Nat.  BTc.,  42  111.  238;  Baldwin  v.  Leon- 
ard, 39  Vt.  260;  Lawler  v.  Armstrong  (Wash.  '09),  102  P.  775. 

Where  the  real  party  in  interest  is  not  disclosed  to  the  ven- 
dor, the  broker  should  not  be  allowed  to  prevail,  on  the  theory 
that  he  has  produced  the  agent  of  an  undisclosed  principal. 
Mott  v.  Minor  (Cal.  App.  '09),  106  P.  244. 

Sec.  601a.    Postal  card  insufficient  under  statute  to  constitute 
contract  for  broker's  commissions. 

A  postal  card  describing  property  offered  for  sale,  and  stating 
the  terms  of  sale,  though  signed  by  the  broker  to  whom  it  was 
addressed,  was  not  a  valid  contract  within  tne  Nebraska  statute, 
which  requires  broker's  contracts  for  the  sale  of  land  to  be  in 
writing,  and  signed  by  both  parties.  OsBorne  v.  Tfannatt,  149 
K  W.  913,  167  Iowa,  615. 

Sec.  602.    Where  broker  must  be  authorized  in  writing,  con- 
tract without  unenforceable. 

Bevised  Statutes  1899,  Sec.  3418,  providing  that  no  contract 
for  the  sale  of  lands  made  by  an  agent  shall  be  binding  on  the 
principal  unless  the  agent  is  authorized  in  writing  to  make  sucK 
contract,  Held,  that  where  the  employment  of  the  broker  was  not 
evidenced  by  the  written  consent  of  the  land  owner,  a  written  con- 
tract to  sell  the  same  by  the  broker  witH  a  purchaser  was  unen- 
forceable against  the  land  owner.  Young  v.  Ruhwedel,  119  Mo. 
App.  231,  96  S.  W.  228;  McMurran  v.  Duncan,  155  P.  306,  17 
Ariz.  552;  Fritz  v.  Mills,  150  P.  375,  —  Cal.  Sup.  — ;  Aldis  v. 
Schleisher,  99  P.  526,  9  Cal.  App.  372;  "Beaver  v.  Continental 
Bldg.  &  Loan  'AsJn,  116  P.  1105,  15  Cal.  App.  190;  Rleinenge 


PLEADINGS,  PRACTICE,  ETC.  569 

&  Heilbron  v.  Liness,  120  P.  444,  17  Cal.  App.  534;  Pronix  v. 
Sacramento  Valley  Loan  Co.,  126  P.  509,  10  Cal.  App.  529 ;  Sel-. 
vage  v.  ToTbert,  95  K  E  114,  175  Ind.  648,  33  L.  E.  A.  973, 
Ann.  Gas.  1913  C,  724;  Fullenwider  v.  Goben,  95  N.  E.  1010, 
176  Ind.  312;  Price  v.  Walker,  88  N.  E.  78,  43  Ind.  App.  519; 
Wysong  v.  Sells,  —  N.  E.  954,  44  Ind.  App.  238 ;  Keith  v.  Smith, 
89  P.  473,  46  Wash.  131,  13  Ann.  Gas.  975;  Gushing  v.  Monarch 
Timber  Co.,  135  P.  660,  75  Wash.  678,  Ann.  Gas.  1914  C,  1239 ; 
Gerard-Fillio  Co.  v.  McNair,  123  P.  162,  68  Wash.  321 ;  Reitz  v. 
Bryant,  127  P.  583,  71  Wash".  53;  Parker  v.  Bruggemann,  130 
P.  358,  72  Wash.  309;  'Engelson  v.  Port  Crescent  Shingle  Co., 
133  P.  1030,  74  Wash.  424;  Eothwell  v.  Gibson,  98  S.  W.  801, 
121  Mo.  App.  279;  Finley  v.  Handley,  98  S.  W.  803,  121  Mo. 
App.  358;  Kennedy  v.  Merickel,  97  P.  81,  8  Cal.  App.  378; 
'Sanchez  v.  Yerba,  97  P.  205,  8  Cal.  App.  490;  In  re  Balfour  v. 
'Garrotte,  111  P.  615,  14  Cal.  App.  261 ;  Curran  v.  Hubbard,  114 
P.  81,  14  Cal.  App.  733,  re.  den.,  114  P.  83,  14  Cal.  App.  733; 
'Naylor  v.  'Adams,  115  P.  81,  15  Cal.  App.  548;  Carrington  v. 
Smithers,  147  P.  225,  26  Cal.  App.  460;  Mooney  v.  Thompson, 
147  P.  1178,  26  Cal.  App.  634;  Phillips  v.  Jones,  80  1ST.  E.  555, 
39  Tnd.  App.  626;  Doney  v.  Laughlin,  94  N.  E.  1027,  50  Ind. 
rApp.  38;  Olcott  v.  McClure,  98  ff.  E.  82,  50  Ind.  App.  79; 
Morton  v.  Gaffield,  98  K  E.  100,  51  Tnd.  App.  28;  Lustig  v. 
Malriclc,  82  A.  867,  82"  K  J.  Law,  498;  Mendles  v.  Danish,  65 
K.  888,  74  ¥.  J.  Law,  333;  Foofe  v.  EoUins,  97  P.  103,  50 
WasK.  '277;  'Crouch  v.  Forces,  116  P.  14,  63  Wash.  564;  Goodrich 
V.  "Rogers,  134  P.  947,  75  Wash.  212;  Thompson  v.  English,  135 
SP.  664,  76  Wash.  23;  Hutchens  'Co.  v.  Nichols,  142  P.  674,  81 
Wash.  257;  £a7w  v.  Koy,  142  P.  679,  81  Wash.  261;  Mason  v. 
Bft7Zer,  179  HI.  App.  347;  EZoewm  v.  flmftfc,  161  IT.  W.  830,  — 
Mich.  Sup.  — ;  Eyan  v.  TOfcer,  109  P.  417,  —  Cal.  App.  — ; 
^Elmore  v.  Brunniman,  123  N.  E.  248,  —  Ind.  App.  — ;  Lewis  v. 
Tape  joy,  123  K  E.  646,  —  Ind.  App.  — ;  Ttugh  v.  Soleim,  180 
'P.  930,  —  Or.  Sup.  — ;  Weatherhead  v.  'Cooney,  180  P.  760, 
—  Idaho  Sup.  — ;  Jfwrpfcy  v.  Willis,  219  S.  W.  776,  —  Ark  Sup. 
— ;  Eaton  v.  Yount,  191  P.  1009,  —  Cal.  App.  — .  See  also 
Sec.  433. 


570  AMERICAN  LAW   EEAL  ESTATE  AGENCY. 

Sec.  602a.  Manner  in  which  written  contracts  with  real  es- 
tate brokers  employed  to  sell  real  estate  should  be  con- 
strued and  enforced. 

Laws  of  1905,  p.  110,  c.  58,  requiring  an  agreement  employing 
a  real  estate  broker  to  be  written,  should  be  enforced  as  designed 
to  prevent  vendors  and  purchasers  from  being  defrauded  by 
brokers  wrongfully  claiming  commissions,  but  not  in  such  man- 
ner as  to  defraud  brokers.  McCree  \.  Ogden,  50  Wash.  495, 
97  P.  503,  three  judges  dissenting. 

Sec.  602b.  Broker  entitled  to  commission  when  owner  and 
customer  reach  an  agreement. 

Broker  entitled  to  commissions  when  his  customer  reaches  an 
agreement  with  the  owner  as  to  terms  of  sale,  though  agreement 
not  reduced  to  writing  and  signed  by  the  parties.  Arnold  v. 
Schmeidler,  129  NT.  Y.  Sup.  408,  144  App.  Div.  420. 

Sec.  602c.  Broker  entitled  to  commission  on  sale  on  contract 
held  a  contract  to  sell  and  not  of  agency. 

A  contract  by  A.  to  give  B.  the  exclusive  sale  of  land  for 
ninety  days  and  to  execute  deed  either  to  B.  or  persons  to  whom 
he  might  sell,  B.  to  take  any  land  remaining  after  the  expiration 
of  such  time,  was  a  contract  of  sale  and  not  of  agency,  and  the 
broker  who  brought  the  parties  together  was  entitled  to  commis- 
sion. Ansley  Realty  Co.  v.  Pope,  151  S.  W.  525,  105  Tex.  440, 
'rev.  judg.,  Civ.  App.,  Pope  v.  Ansley  Realty  Co.,  135  S.  W.  1103. 

Sec.  602d.  Contract  signed  by  one,  and  later  by  all  tenants 
in  common,  held  sufficient  for  broker's  commissions. 

Under  statute  of  frauds  (2  Comp.  Stat.  1910,  p.  2617),  Sec. 
10,  providing  that  a  broker  selling  land  is  not  entitled  to  a 
commission  unless  the  employment  is  in  writing,  where  the  con- 
tract for  employment  of  a  broker  to  sell  land,  which  complied 
with  the  statute,  was  signed  by  one  of  several  tenants  in  com- 
mon, such  authority,  and  the  subsequent  agreement  by  all  the 


PLEADINGS,  PRACTICE,  ETC.  571 

tenants  in  common  to  convey,  held  sufficient.    Freeman  v.  Van 
Wegemen,  101  A.  55,  —  N.  J.  Sup.  — . 

Sec.   602e.     Contract  of   employment  must  be  in  writing, 
whether  broker  or  middleman. 

Under  Civil  Code,  Sec.  1624,  subd.  6,  requiring  real  estate 
employment  contracts  to  be  in  writing,  there  is  no  distinction  be- 
tween a  middleman  and  an  agent  as  applied  to  real  estate  bro- 
kers. Ryan  v.  Walker,  109  P.  417,  —  Cal.  App.  — . 

Sec.  603.    Broker  can  not  recover  commissions  where  contract 
unenforceable. 

A  real  estate  agent  can  not  base  a  claim  for  commissions  on 
a  contract  of  sale  which,  because  of  its  incompleteness,  can  not 
be  enforced.  Bradford  v.  Menard,  35  Minn.  197;  Mason  v. 
Small,  130  Mo.  App.  249,  109  S.  W.  822 ;  Shepard-Teague  Co.  v. 
Hermann,  107  P.  622,  12  Cal.  App.  394.  See  also  Sec.  209. 

Sec.  603a.    Contract  of  employment  to  purchase  land  not  re- 
quired to  be  in  writing. 

Defendant  employed  plaintiff  to  negotiate  with  the  owner  of 
land  for  its  purchase  by  defendant,  at  a  price  fixed  by  him. 
This  plaintiff  accomplished.  In  an  action  to  recover  for  services 
rendered  under  such  contract,  it  was  argued  that  the  contract, 
not  being  in  writing,  plaintiff  could  not  recover  under  the  stat- 
ute of  frauds  (2  Gen.  St.  1895,  p.  1604,  Sec.  10)  declaring  that 
no  real  estate  agent  shall  be  entitled  to  a  commission  for  a  sale 
or  exchange  of  real  estate,  unless  the  authority  for  selling  or 
exchanging  the  land  is  in  writing.  Held,  that  the  employment 
of  an  agent  to  purchase  land  is  not  within  the  statute  of  frauds. 
Brown  v.  Winter,  77  A.  1021,  80  N".  J.  Law,  602,  judg.  aff.,  82 
A.  934,  82  K  J.  Law,  729. 

Sec.  604.    Contract  by  unlicensed  broker  not  absolutely  void. 

Under  the  Code  requiring  a  license  to  practice  the  business  of 
a  broker,  and  imposing  a  penalty  for  the  violation  thereof,  a 


572  AMEKICAN  LAW  REAL   ESTATE   AGENCY. 

contract  of  an  unlicensed  real  estate  broker  to  sell  real  estate 
for  another  is  not  absolutely  void.  Cobb  v.  Dunlevie,  63  W.  Va. 
398,  60  S.  E.  384;  Smith  v.  Sharp  (Ala.  Sup.  '09),  50  S.  381; 
ManJcer  v.  Tough,  98  P.  792,  79  Kan.  46,  19  L.  E.  A.  (N.  S.) 
675,  17  Ann.  Gas.  208;  Sullivan  v.  Duratt,  109  P.  777,  83  Kan. 
799;  Hughes  v.  Snell,  115  P.  1105,  28  Okl.  828,  34  L.  E.  A. 
(N.  S.)  1133,  Ann.  Gas.  1912  D,  374;  Calhoun  v.  Egunbach,  124 
P.  978,  34  Okl.  185.  See  also  Sec.  576. 

Sec.  605.    Agreement  to  hire  auctioneer  to  sell  land  need  not 
be  in  writing. 

Plaintiff  was  employed  by  defendant  to  advertise  property 
for  sale  at  auction,  and  secured  an  auctioneer  and  took  charge 
of  the  sale;  after  plaintiff  had  advertised  the  property  and 
secured  an  auctioneer,  but  before  the  day  of  sale,  defendant 
sold  the  property  privately,  and  thereupon  agreed  with  plain- 
tiff to  pay  him  two  per  cent,  of  the  price  for  what  he  had  done. 
Held,  that  the  agreement  was  not  within  the  statute  which  re- 
quires a  writing  to  entitle  brokers  to  commissions  for  selling 
real  estate,  and  is  valid.  Griffith  v.  Daly,  56  N.  J.  Law,  466, 
29  A.  169. 

Sec.  606.    Memoranda  held  insufficient  to  meet  the  requirements 
of  the  statute  of  frauds. 

Ballinger's  Acts  and  Statutes,  Sec.  4576,  provides  that  an 
agreement  authorizing  or  employing  a  broker  to  sell  or  pur- 
chase real  estate  for  compensation  or  commission  shall  be  void 
unless  the  contract  or  some  note  or  memorandum  thereof  be 
in  writing,  signed  by  the  party  to  be  charged;  in  an  action 
by  a  broker  he  relied  on  a  memorandum  addressed  to  himself 
reading:  "Enclosed  find  contract  which  S.  wishes  signed  by 
P.  and  confirmed  by  E.  Advise  us  when  abstract  is  ready," 
and  signed  by  one  of  the  defendants,  S.  being  the  other  de- 
fendant; F.  having  represented  the  owner  of  the  land  and  E. 
being  the  owner,  and  the  abstract  being  an  abstract  of  title  to 
the  land.  Held,  that  the  memorandum  was  insufficient  under 
the  statute.  Keith  v.  Smith,  46  Wash.  131,  89  P.  473 ;  McCrea 


PLEADINGS,  PBACTICE,  ETC.  573 

v.  Ogden  (Wash.  Sup.  '09),  103  P.  788;  Mendenhall  v.  Rose 
(Sup.  Ct.  Cal.  '93),  33  P.  884;  Phillips  v.  Jones,  39  Ind.  App. 
626,  80  N.  E.  555. 

Sec.  607.    Statute  of  limitations. 

Where  a  broker  sold  certain  property  under  a  contract  by 
which  the  purchaser  leased  the  same  for  a  term  of  years  with 
an  option  to  purchase,  which  option  was  exercised  December 
31,  1902,  the  broker's  right  to  commissions  did  not  accrue  until 
that  time,  and  was  not  barred  by  the  three  years'  statute  prior 
to  the  commencement  of  the  action  to  recover  the  same  on  June 
27,  1904.  Coates  v.  Locust  Point  Co.,  102  Md.  291,  62  A.  625. 

If  a  broker  having  charge  of  the  property  of  a  syndicate 
makes  a  contract  of  sale  of  lots  to  a  nominal  purchaser  to  show 
business,  and  such  purchaser  assigns  to  a  l)ona  fide  purchaser 
who  completes  the  sale,  the  statute  of  limitations  will  run 
against  the  broker's  claim  for  commissions  as  of  the  date  of 
the  bona  fide  sale,  and  not  of  the  nominal  one.  Ross  v.  Fick- 
ling,  11  App.  Gas.  (D.  C.)  442. 

An  action  against  real  estate  brokers  for  deceit  in  selling 
land  is  governed  by  the  statute  requiring  actions  for  debt  not 
evidenced  by  a  written  contract,  to  be  brought  within  two  years. 
Gordon  v.  Rhodes  (Tex.  Civ.  App.  '09),  116  S.  W.  40. 

A  right  of  action  by  an  agent  against  his  principal  for  reim- 
bursement for  money  paid  out  in  defending  a  suit  for  breach 
of  warranty  of  land  sold  at  the  principal's  request,  would  not 
arise  until  the  agent  paid  the  judgment  against  himself,  so 
that  an  action  brought  within  six  months  thereafter  would 
not  be  barred  by  limitations,  and  limitations  would  not  begin 
to  run  to  bar  recovery  of  the  expenses  of  defending  the  suit 
until  the  last  item  was  paid,  as  in  the  case  of  a  running  account. 
Shearer  v.  Guardian  Trust  Co.  (Mo.  App.  '09),  116  S.  W.  456. 

A  purchaser  was  induced  by  fraudulent  representations  of 
the  broker  of  the  vendor  to  purchase  land  for  $12,500,  $5,000 
of  which  was  to  be  in  cash,  and  the  balance  in  notes.  The  pur- 
chaser paid  to  the  vendor  $2,500  of  cash,  and  it  was  under- 
stood that  $2,527  should  be  paid  by  the  broker  to  the  owner 
on  the  purchaser's  account.  Payment  was  not  made,  and  the 
purchaser  did  not  discover  the  fact  until  four  years  and  ten 


574  AMERICAN  LAW  REAL  ESTATE   AGENCY. 

months  had  elapsed.  Held,  that  the  right  of  the  purchaser  to 
recover  from  the  broker  as  for  deceit  was  barred  by  the  four 
years'  statute  of  limitations.  Gordon  v.  Rhodes  (Tex.  Civ.  App. 
'09),  117  S.  W.  1023,  certified  questions  answered,  116  S.  W.  40. 

Sec.  608.    Rival  brokers. 

One  of  several  independent  brokers  employed  to  procure  a 
purchaser  must  produce  a  customer  of  his  own,  and  not  one 
then  sustaining  that  relation  to  another  of  the  brokers,  and 
when  he  is  first  in  negotiating  with  a  customer  he  will  con- 
tinue to  sustain  that  relation  until  it  is  expressly  broken  off 
or  the  matter  of  the  purchase  has  ceased  to  be  held  under  con- 
sideration by  the  purchaser.  Jennings  v.  Trummer,  52  Oregon, 
149,  96  P.  874.  "Compare  Sec.  445. 

Sec.  609.    If  purchaser  willing  to  perform,  statute  of  frauds 
not  available  to  defeat  broker's  commissions. 

A  real  estate  broker,  in  order  to  recover  commissions,  must 
show  either  a  consummation  of  the  sale  or  the  obtaining  of 
a  purchaser;  the  mere  fact,  however,  that  the  contract  was 
within  the  statute  of  frauds  does  not  preclude  a  recovery  for 
commissions,  if  a  willingness  to  perform  the  same  is  shown. 
Carter  v.  Simpson,  130  111.  App.  328;  McKenna  v.  Harvie,  38 
Minn.  18,  35  N.  W.  668.  This  is  true  also  in  the  case  of  a  con- 
tract to  exchange  properties.  Schulte  v.  Meehan,  133  111.  App. 
491. 

Sec.  610.    Reasonable  price  inferred  by  law. 

Where  a  contract  for  the  sale  of  land  between  the  owner 
and  a  couple  of  real  estate  agents  provides  that  the  owner 
shall  fix  its  selling  price,  the  law  infers  that  it  shall  fix  a  rea- 
sonable price,  and  that  the  sale  shall  be  made  within  a  rea- 
sonable time.  Tinsley  v.  Durfey,  99  111.  App.  239. 

Sec.  611.    What  is  a  reasonable  time  must  be  determined  by  the 

facts  and  circumstances  in  each  case. 

In  determining  what  constitutes  a  reasonable  time  within 
which  a  real  estate  broker  employed  to  procure  a  purchaser  for 
a  farm  must  procure  a  purchaser  in  order  to  be  entitled  to  his 


PLEADINGS,  PRACTICE,  ETC.  575 

commissions,  the  facts  and  circumstances  must  be  considered. 
Sallee  v.  McMurtry,  133  Mo.  App.  253,  88  S.  W.  157;  Geiger  v. 
Riser  (Colo.  Sup.  J10),  107  P.  267;  Cocqugt  v.  Shower,  189  P. 
606,  —  Colo.  Sup.  — .  See  also  Sees.  612,  1080. 

Where  an  owner  of  premises  agreed  in  September  to  extend 
the  time  within  which  a  broker  might  sell  to  such  time  as  he 
could  get  the  prospective  purchaser  to  bind  itself  to  buy,  and 
it  was  contemplated  that  the  broker  was  to  have  until  some 
time  after  the  beginning  of  the  year  to  make  the  sale,  and  the 
sale  was,  in  fact,  closed  in  April,  active  negotiations  having 
been  kept  up  all  the  time  with  the  prospect  of  eventual  success, 
the  delay  in  closing  the  sale  was  not  unreasonable,  and  did  not, 
on  that  ground,  authorize  the  revocation  of  the  broker's  au- 
thority without  his  consent.  Luhn  v.  Fortran  (Tex.  Civ.  App. 
'09),  115  S.  W.  667.  Writ  of  error  denied  by  Supreme  Court. 

Sec.  612.    Broker's  employment  continues  for  a  reasonable  time. 

Where,  at  the  time  a  broker  was  employed  to  sell  real  estate, 
no  period  was  agreed  on  during  which  the  agency  should  con- 
tinue, it  continued  for  a  reasonable  time  after  the  employment, 
in  view  of  all  the  circumstances.  Staehlin  v.  Kramer,  118  Mo. 
App.  329,  94  S.  W.  785 ;  Bailee  v.  McMurtry,  113  Mo.  App.  253, 
88  S.  W.  157;  Morgan  v.  Keller,  194  Mo.  663,  92  S.  W.  75; 
Hanna  v.  Espalla,  148  Ala.  313,  42  S.  443;  Turner  v.  Snyder, 
132  Mo.  App.  320,  111  S.  W.  858;  Geiger  v.  Kiser  (Colo.  Sup. 
'10),  107  P.  267;  McFarland  v.  Boucher,  134  N.  W.  91,  153 
Iowa,  716;  Geo.  J.  Wanstrath  R.  E.  Co.  v.  Wenz,  170  S.  W.  346, 
185  Mo.  App.  162;  Sugarman  v.  Fraser,  128  N.  Y.  Sup.  718,  71 
Misc.  Kep.  416;  Alexander  v.  Sherwood  Co.,  77  S.  E.  1027,  72 
W.  Va.  195,  49  L.  E.  A.  (N.  S.)  985;  Turner  v.  Snyder,  123  S. 
W.  1050,  139  Mo.  App.  656;  Dodge  v.  Childers,  151  S.  W.  749, 
167  Mo.  App.  448;  Barney  v.  Yazoo  Delta  Loan  Co.,  101  N.  E. 
96,  179  Ind.  337;  Hall  v.  Olson,  114  P.  658,  58  Or.  464;  Graf 
&  Case  Realty  Co.  v.  Lovell,  163  S.  W.  877,  180  Mo.  App.  706 ; 
McCarney  v.  Lightner,  175  N.  W.  751,  —  Iowa  Sup.  — ;  Coc- 
quyt  v.  Showers,  189  P.  606,  —  Colo.  Sup.  — ;  Shortridge  v. 
Raiffreian,  222  S.  W.  1031,  —  Mo.  App.  — .  Compare  Sees.  614, 
620. 


576  AMERICAN  LAW'EEAL  ESTATE  AGENCY. 

Sec.  G12a.  Owner  allowed  reasonable  time  after  purchaser 
procured  to  prepare  abstract,  deed,  etc. 

Owner  held  entitled,  after  production  of  purchaser  by  broker, 
to  reasonable  time  in  which  -to  make  deed,  prepare  abstract,  cor- 
rect any  correctible  defects  therein,  and  not  liable  for  commis- 
sions if  the  purchaser  refuses  to  allow  such  reasonable  time. 
Bunyard  v.  Farman,  161  S.  W.  649,  176  Mo.  App.  89. 

What  is  a  reasonable  time  for  the  owner  of  land  to  make  a 
deed,  prepare  an  abstract  and  correct  any  correctible  defects 
therein,  after  the  production  of  a  purchaser  by  a  broker,  depends 
on  the  facts  of  each  case.  Id. 

Sec.  612b.  Broker's  contract  of  employment  required  owner 
to  designate  tracts  and  fix  prices  and  terms  within  a 
reasonable  time. 

Under  contract  of  broker  with  landowner  providing  that  owner 
designate  tracts,  and  fix  prices  and  terms,  the  owner  must  do  this 
in  a  reasonable  time.  Dougherty  v.  Smith,  192  S.  W.  1131,  — 
Tex.  Civ.  App.  — . 

Sec.  612c.  Favorable  reply  of  owner  to  broker's  inquiry 
bound  former  for  reasonable  time  for  broker  to  find  a 
purchaser. 

An  owner  of  real  estate  is  not  bound  for  an  indefinite  period 
by  his  favorable  reply  to  an  inquiry  as  to  the  price  of  such  real 
estate,  made  to  a  broker  who  agrees  to  furnish  a  prospective  pur- 
chaser. Becker  v.  Hollesen,  198  111.  App.  180. 

Sec.  612d.  Broker's  contract  of  employment  in  March  held 
not  ended  in  August. 

Where  owner  of  real  estate  in  March  made  an  exclusive  agency 
agreement  for  its  sale,  without  limit  excepting  reservation  to  ter- 
minate on  thirty  days'  notice;  held,  that  the  contract  had  not 
expired  in  August  by  mere  lapse  of  time.  Howard  &  Brown 
Realty  Co.  v.  Barnett,  206  S.  W.  417,  —  Mo.  App.  — . 

Sec.  613.  Contract  to  pay  plaintiff  $1,000,000  if  defendant 
bought  railroad  bound  him  only  for  a  reasonable  time. 

Where  plaintiff  alleged  that  defendant  agreed  to  pay  him 
$1,000,000  for  information  and  services  relating  to  the  prospec- 


PLEADINGS,  PBAOTICE,  ETC.  577 

tive  purchase  of  a  railroad,  in  case  the  defendant  purchased  the 
same  or  became  interested  in  its  purchase  with  others,  such  con- 
tract could  not  be  construed  to  restrain  defendant  from  becoming 
interested  in  the  purchase  of  such  railroad  for  all  time,  on  pain 
of  being  liable  on  the  contract,  but  only  bound  him  not  to  par- 
ticipate in  the  purchase  for  a  reasonable  time  unless  he  paid 
plaintiff  for  his  services.  Mengis  v.  Fitzgerald,  95  N.  Y.  S.  436, 
108  App.  Div.  24;  Dyer  v.  Duffy,  39  W.  Va.  148,  19  S.  E.  540, 
24  L.  E.  A.  339;  Shaw  v.  Chiles,  71  S.  E.  745,  9  Ga.  App.  460. 

Sec.  614.    Reasonable  time  immaterial  where  broker  finds  pur- 
chaser while  employed. 

Where  a  broker  finds  a  purchaser  at  the  seller's  terms  while 
still  employed,  the  reasonableness  of  the  time  which  he  has  taken 
to  do  so  is  immaterial.  Moore  v.  Boehm,  91  N.  Y.  S.  125,  45 
Misc.  622;  Tebo  v.  Weld,  92  A.  876,  5  Boyce,  Del.  Super.  255; 
Kurtz  v.  Payne  Inv  Co.,  135  N.  W.  1075,  156  Iowa,  376,  re.  den. 
but  opinion  modified,  133  N.  W.  460 ;  Ewan  v.  Power,  178  S.  W. 
1092,  165  Ky.  806.  See  also  Sec.  628.  Compare  Sec.  612. 

Sec.  614a.     When  six  months  not  unreasonable  delay  in  ac- 
cepting broker's  offer  for  finding  a  purchaser. 

Unreasonable  delay  in  accepting  an  offer  to  pay  a  broker  a 
commission  for  procuring  a  purchaser  for  land,  by  a  letter  dated 
Oct.  19,  1907,  is  not  shown  because  acceptance  was  deferred  until 
the  spring  of  1908,  being  not  received  until  then  and  immediately 
accepted.  Olcott  v.  McClure,  98  N".  E.  82,  50  Ind.  App.  79. 

Sec.  615.  In  the  absence  of  an  express  agreement  the  reason- 
able  value  of  the  services  may  be  recovered  by  broker. 
Where  a  real  estate  agent  renders  services  in  procuring  a 
purchaser  for  land,  with  the  owner's  consent  but  without  any 
agreement  for  the  payment  of  a  certain  sum  for  such  services, 
the  agent  is  entitled  to  recover  the  reasonable  value  of  the 
services.  Stephens  v.  Tomlinson,  etc.  (Tex.  Civ.  App.  '05),  88 
S.  W.  304;  Hawkins  v.  Chandler,  8  Houst.  (Del.)  434,  32  A. 
464;  Biester  v.  Evans,  59  111.  App.  181;  New  Kanawha  C.  & 
M.  Co.  v.  Wright,  163  Ind.  529,  72  N.  E.  550;  Carruthers  v. 
Towne,  86  Iowa,  318,  53  N.  W.  240;  Holies  v.  Weston,  156 
Mass.  357,  31  N.  E.  483;  Boardman  v.  Hanks,  185  Mass.  555, 


578  AMERICAN"  LAW  EEAL  ESTATE   AGENCY. 

70  N.  E.  1012;  Baer  v.  Koch,  21  N.  Y.  S.  974,  2  Misc.  334; 
Donald  v.  Lawson,  87  N.  Y.  S.  485;  Lansing  v.  Johnson,  18 
Neb.  174,  24  N.  W.  726;  McMurtry  v.  Madison,  18  Neb.  291, 
25  N.  W.  85;  Harrell  v.  Zimpleman,  66  Tex.  292,  17  S.  W.  478; 
Alexander  v.  Wdkefield  (Tex.  Civ.  App.  '02),  69  S.  W.  77; 
McEwen  v.  Vallentine,  170  P.  490,  —  Okl.  Sup.  — ..  See  also 
Sees.  513,  587. 

Sec.  616.    Reasonable  compensation. 

What  is  a  fair  and  reasonable  compensation  depends  upon 
the  amount  allowed  for  such  services  by  custom  or  usage  locally 
prevailing  among  brokers.  Hartman  v.  Warner,  75  Conn.  197, 
52  A.  719 ;  Williams  v.  Clowes,  75  Conn.  155,  52  A.  820 ;  Semple 
v.  Rand,  112  Iowa,  616,  84  N.  W.  683;  Thomas  v.  Brandt  (Md. 
'93),  26  A.  524;  Graves  v.  Dili,  159  Mass.  74,  34  N.  E.  336; 
Ashby  v.  Holmes,  68  Mo.  App.  23 ;  Green  v.  Wright,  36  Mo. 
App.  298;  Lansing  v.  Johnson,  18  Neb.  174,  24  N.  W.  726; 
Potts  v.  Aechtermacht,  93  Pa.  St.  138 ;  Insloe  v.  Jones,  Brightly 
(Pa.),  76. See  also  Sec.  626. 

Sec.  617.    Not  necessary  for  broker  to  put  defendant  in  default 
before  suing  for  fees. 

Where,  after  giving  plaintiff  a  power  of  attorney  to  act  as 
agent  for  the  sale  of  defendant's  real  estate,  plaintiff  and  a 
prospective  buyer  had  started  to  meet  the  defendant  at  the 
property  in  another  State,  and  defendant  put  an  end  to  the 
agency  and  placed  it  out  of  his  power  to  carry  out  the  promise 
of  sale  by  making  a  sale  to  a  third  person,  there  was  no  ne- 
cessity for  plaintiff  to  put  defendant  in  default  before  suing 
for  his  commissions.  Luckett  Land  &  Em.  Co.  v.  Brown,  118 
La.  943,  43  S.  628. 

Sec.   618.    Ratification   not   shown  by   acquiescence   without 
knowledge. 

In  an  action  by  a  broker  to  recover  commissions  for  making 
a  sale,  defendant's  acquiescence  in  plaintiff's  statement  that 
plaintiff  had  secured  a  loan  for  a  prospective  purchaser  did 
not  fairly  justify  the  conclusion  that  defendant  ratified  the 
agency  claimed  by  plaintiff,  as  no  claim  of  agency  was  sug- 
gested by  plaintiff's  statement.  Howe  v.  Miller,  23  Ky.  L.  E. 
1610,  66  S.  W.  184.  See  also  Sees.  458,  567. 


PLEADINGS,  PRACTICE,  ETC.  579 

Sec.  618a.    Reply  of  owner  which  did  not  amount  to  a  rati- 
fication. 

A  contract  of  sale  executed  by  one  having  authority  only 
to  find  a  purchaser,  and  containing  provisions  not  referred  to 
in  his  letter  to  the  owner  that  he  had  an  offer  of  purchase 
on  certain  terms  and  not  known  to  the  owner,  is  not  ratified 
by  his  reply,  "All  right,  offer  accepted."  Hardinger  v.  Co- 
lumbia, 50  Wash.  405,  97  P.  445.  See  also  Sec.  24. 

Sec.  618b.    When  knowledge  of  broker  withheld  from  pur- 
chaser did  not  bind  latter. 

The  knowledge  of  a  real  estate  broker,  acting  as  the  agent  of 
the  owner  of  land,  as  to  whether  certain  buildings  on  the  land 
sold  were  to  be  excepted,  does  not  bind  the  purchasers.  Alex- 
ander v.  Anderson,  207  S.  W.  205,  —  Tex.  Civ.  App.  — . 

Sec.  619.    Ratification  by  acceptance  of  offer  made  to  broker. 

The  acceptance  by  a  vendor  of  land  of  an  offer  actually  made 
to  a  broker,  and  the  consummation  of  sale  on  such  terms,  is 
a  ratification  of  the  broker's  act,  and  entitles  him  to  his  com- 
missions. Levy  v.  Wolf,  2  Cal.  App.  491,  84  P.  313.  Even 
when  sold  through  another  broker.  Id. 

Sec.  620.    Ratification  cures  defect  in  agent's  appointment. 

An  owner  verbally  authorized  an  agent  to  offer  real  estate 
for  sale;  the  agent,  in  the  name  of  the  principal,  gave  a  broker 
written  authority  to  procure  a  purchaser  for  the  land;  the 
owner  subsequently  ratified  the  agent's  act  by  offering  per- 
formance of  the  contract  of  sale  to  the  purchaser  procured 
by  the  broker  by  tendering  a  deed  conveying  the  premises. 
Held,  that  the  defect  in  the  appointment  was  cured  by  the 
owner's  acts  constituting  ratification.  Mercantile  Trust  Co.  v. 
Niggeman,  119  Mo.  App.  56,  96  S.  W.  293.  See  also  Sees.  24, 
621,  622. 

Sec.  620a.    Sufficient  allegation  of  ratification. 

In  an  action  for  commissions  claimed  to  have  been  earned 
by  the  purchase  of  land  for  defendant,  where  the  latter  claimed 


580  AMERICAN   LAW   KEAL   ESTATE    AGENCY. 

that  plaintiff  acted  in  violation  of  his  agency  by  paying  a 
higher  price  per  acre  than  he  was  authorized,  etc.,  allegations 
of  the  complaint  that  plaintiff  notified  defendant  from  time  to 
time  of  the  purchases,  the  purchase  price,  amounts  of  payments, 
etc.,  and  defendant,  knowing  of  the  purchases  and  terms  thereof, 
ratified  them,  as  well  as  the  allegations  of  the  reply  that  the 
payments  of  the  land  in  excess  of  the  prices  thereof  were 
made  with  defendant's  knowledge  and  ratified  by  him,  suffi- 
ciently alleged  ratification.  Mahon  v.  Rankin  (Or.  Sup.  '09), 
102  P.  608. 

Sec.  621.    Ratification  of  agent's  appointment  by  principal 

executing  contract  with  purchaser. 

Where  a  contract  to  purchase  land  is  presented  to  the  ven- 
dor, signed  by  the  purchaser,  it  is  for  the  vendor  to  decide 
whether  the  purchase  is  acceptable,  and  if  he  then  executes  the 
contract  himself,  he  ratifies  the  act  of  his  agent  in  having  pre- 
viously, though  unauthorizedly,  so  done,  it  is  binding  on  him. 
Flynn  v.  Jordal,  124  Iowa,  457,  100  N.  W.  326;  Findlay  v. 
Koch,  126  Iowa,  131,  101  N.  W.  766.  See  also  Sees.  24,  620,  622. 

Sec.  622.    Ratification  by  acceptance  of  the  proceeds. 

A  brother  and  sister  were  tenants  in  common  of  a  tract  of 
land,  which  the  principal  employed  an  agent  to  sell;  the  agent 
procured  a  purchaser  and  wrote  to  the  brother  a  letter  con- 
taining the  terms  of  the  contract  of  sale;  the  brother  showed 
the  letter  to  his  sister,  and  the  brother  subsequently  wired  that 
the  sale  was  accepted;  on  the  death  of  the  brother  the  sister 
{wrote  to  the  agent  with  reference  to  the  sale,  and  a  draft  for 
a  part  payment  was  received  by  her  and  cashed;  she  subse- 
quently orally  agreed  to  a  conveyance  of  the  land  according 
to  the  contract.  Held,  that  she  ratified  the  contract  of  sale. 
Stuart  v.  Mattern,  141  Mich.  686,  105  N.  W.  35,  12  D.  L.  N. 
616.  See  also  Sees.  24,  620,  621. 

Sec.  623.    To  constitute  ratification  of  the  act  of  attorney, 

knowledge  on  part  of  principal  immaterial. 

Where  one  authorizes  an  attorney  in  fact,  by  power  duly 

signed  and  acknowledged,  to  make  a  certain  contract  for  the 

purchase  of  land  with  certain  parties,  and  of  a  certain  date, 

and  subsequently  ratifies  the  act  of  his  attorney,  it  is  imma- 


PLEADINGS,  PRACTICE,  ETC.  581 

terial  whether  he  knew  all  the  terms  and  conditions  of  the 
contract  at  the  time  it  was  made,  and  he  will  be  bound  by  the 
contract  made  by  such  attorney.  Bank  v.  Garvey,  66  Neb. 
767,  92  N.  W.  1025,  99  N.  W.  666. 

Sec.  624.    It  is  an  essential  prerequisite  to  ratification  that 

the  principal  had  knowledge  of  unauthorized  contract. 
A  signature  to  an  agreement  for  the  sale  of  land  made  for 
another  without  authority,  may  be  by  him  adopted  and  rati- 
fied so  as  to  be  of  the  same  force  as  if  made  by  authority  ante- 
cedently given,  and  such  ratification  may  be  inferred  from  cir- 
cumstances, but  knowledge  that  there  was  such  an  agreement 
signed  for  him  is  an  essential  prerequisite  to  proof  of  his  rati- 
fication. O'Reilly  v.  Keim,  54  N.  J.  Eq.  418,  34  A.  1073.  See 
also  Sec.  24. 

Sec.  624a.    Sale  by  owner's  son  at  reduced  price  to  broker's 
customer  barred  broker's  commission. 

Where  a  broker,  with  authority  to  sell  land  at  $60,000,  secured 
an  offer  by  C.  of  $42,000,  and  a  reduction  by  the  owner  to 
$48,000,  but  could  not  effect  a  sale,  and  the  owner's  son,  with 
knowledge,  sold  to  C.  for  $43,500,  the  broker  was  not  entitled  to 
commissions,  the  owner  being  without  knowledge.  Terry  v.  Bart- 
lett,  140  N.  W.  1133,  153  Wis.  208. 

Sec.  625.    Tender  not  necessary  to  entitle  broker  to  recover 
on  principal's  refusing  purchaser. 

Where  a  broker  obtained  a  purchaser  who  in  good  faith  of- 
fered to  buy  at  defendant's  price,  a  formal  tender  of  the  price 
was  not  necessary  until  defendant  evinced  some  disposition  to 
accept  it,  in  order  to  entitle  the  broker  to  commissions.  Carlin 
v.  Lifur,  2  Cal.  App.  590,  84  P.  292.  Nor  to  bring  the  pur- 
chaser into  the  owner's  presence.  Getzelsohn  v.  Donnelly,  98  N. 
Y.  S.  213,  50  Misc.  164.  The  refusal  by  the  owner  to  accept  the 
offer  was  a  waiver  of  tender.  McDermott  v.  Mahoney,  115  N.  W. 
32,  139  Iowa,  292,  106  N.  W.  925;  Moore  v.  BoeJim,  91  N.  Y.  S. 
125,  45  Misc.  622 ;  Fawver  v.  Fullingim,  149  S.  W.  746,  —  Tex. 
Civ.  App.  — ;  Parker  v.  Seattle  Land  &  Home  Co.,  165  P.  1086; 
Leland  v.  Barber,  117  N.  E.  33,  228  Mass.  144.  See  also  Sec. 
436. 


CHAPTER  IV. 


SECTION. 

626.  Custom  or  usage. 

626a.  Custom  insufficient  to  supply 
lack  of  employment  as  broker. 

627.  Defendant  cannot  object  where 

evidence  shows  sale  for  less 
than  broker  claims. 

628.  Presumptions. 

629.  Assumpsit. 

630.  Actions  between  principals  and 

agents. 

631.  Common  counts. 

632.  Petition,  ultimate  facts  must  be 

pleaded. 

632a.  Petition  in  action  to  recover 
commissions. 

632b.  When  right  of  action  for  com- 
missions accrues  to  broker. 

632c.  In  action  for  division  of  com- 
mission, broker  without  agree- 
ment could  not  enforce  pay- 
ment. 

632d.  Broker  entitled  to  recover  com- 
mission for  loan  when  he  shows 
he  procured  person  able  and 
willing  to  lend. 

G32e.  Petition  failing  to  show  broker 
procured  purchaser  able,  etc., 
or  breach  by  seller,  subject 
to  demurrer. 

633.  Petition  alleging  failure  to  ex- 

change defective. 

G33a.  In  action  between  brokers  facts 
which  stated  a  cause  of  action. 

634.  Petition  alleging  sales  to  persons 

defective. 

635.  Petition  alleging  deed  of  trust 

not  defective. 

635a.  Complaint  not  objectionable  for 
582 


SECTION. 

failing  to  show  that  plaintiff 
found  a  purchaser  on  terms 
offered. 

636.  Petition  that  brokers  have  over 

certain  sum  when  not  breached. 
636a.  When  proper  to  withdraw  case 
from  jury  and  enter  a  judg- 
ment of  dismissal. 

637.  Petition  on  express  contract  may 

recover,  when. 

637a.  Necessary  allegations  and  proof 
to  enable  broker  to  recover 
commissions  for  effecting  sale 
or  exchange. 

637b.  Petition  sufficiently  setting  out 
contract  with  firm  of  real 
estate  broker  to  sell  land. 

638.  Cannot  recover  on  proof  of  sub- 

stituted contract. 

639.  Failing    to    prove    agreed    may 

recover  reasonable. 

640.  Petition  good  against  demurrer. 
640a.  Petition  for  commissions  not  de- 

murrable  for  failing  to  allege 
customer  ready,  able  and  will- 
ing to  purchase. 

641.  When  agent  may  recover  without 

showing  performance. 
641a.  Broker's  action  for  commission 
for  breach  of  defendant's  con- 
tract therefor  did  not  need  to 
allege  fraud. 

642.  To  recover  money  broker  refuses 

to  pay,  need  not  allege  he  had 
authority  to  collect. 
642a.  Broker  not  liable  to  principal  for 
money   refunded   on   rejected 
contract. 


PLEADINGS,  PRACTICE,  ETC. 


583 


SECTION. 

642b.  Broker  receiving  money  for  his 
principal  not  liable  to  repay  or 
suit  by  party  entitled  thereto. 

642c.  Circumstances  under  which  party 
entitled  to  money  may  sue 
agent  for  its  recovery. 

643.  Alleging  sale  by  owner  ending 

contract  demurrable. 

644.  Alleging   notice   of  double   em- 

ployment not  demurrable. 

645.  Bringing  parties  into  touch  in- 

sufficient. 

646.  Alleging  defendant  accepted  serv- 

ices when  good. 

647.  Failing    to  show    written    con- 

tract, rest  immaterial. 

648.  Incomplete  «opies  of   unsigned 

letters  demurrable. 

649.  Petition  for  commission  on  pass- 

ing of  title  defective. 

649a.  Petition  which  failed  to  state 
cause  of  action. 

649b.  Broker's  failure  to  state  per- 
formance of  contract  stated 
no  cause  of'  action. 

650.  For    procuring    tenant    in    not 

alleging  to  sell. 


SECTION. 

650a.  Complaint  defective  for  failure 

to  properly  state  contract  of 

employment. 

651.  Agreement  to  pay  as  commission 

all  over  enough. 

652.  Petition    for    commissions    for 

selling  bonds  defective. 

653.  Out  of  last  cash  payment  must 

aver  such  payment. 
653a.  Petition    for    commission    from 
funds  collected  must  aver  same 
was  adequate  for  the  purpose. 

654.  Not   alleging  agreement   stated 

made  defective. 

655.  Asking  judgment  for  excess  de- 

murrable. 

656.  Petition  sufficient  without  alleg- 

ing sale  for  the  purpose  of 
defrauding  plaintiff. 

656a.  Petition  not  defective  as  alleging 
contract  in  violation  of  bro- 
ker's duty. 

656b.  Petition  against  broker  for  fraud 
in  exchange  of  land. 

656c.  Petitions  held  demurrable. 

656d.  Petitions  held  sufficient. 

656e.  Parties  to  actions. 


Sec.  626.    Custom  or  Usage. 

A  custom  that  did  not  require  purchasers  of  land  to  pay 
cash,  although  the  terms  of  sale  were  for  cash  payments,  will 
not  sustain  a  contract  of  sale  made  by  a  real  estate  agent  which 
violated  an  instruction  to  sell  for  one-third  cash.  Wandless 
v.  McCandless,  38  Iowa,  20.  Where  a  principal  claimed  that 
its  broker  had  been  notified  of  its  custom  to  give  only  quit- 
claim deeds  to  purchasers  of  its  real  estate,  evidence  to  show 
that  after  its  refusal  to  give  a  deed  with  warranty,  it  offered 
to  give  such  a  deed  if  an  increased  price  was  paid  was  ad- 
missible to  show  that  no  such  custom  existed.  Beach  v.  Trav- 
elers' Ins.  Co.,  73  Conn.  118,  46  A.  867.  Where  a  custom  ex- 
ists among  real  estate  agents  and  their  customers  which  en- 
titles the  agents  to  commissions  on  a  sale  of  land  placed  in 
their  hands,  whether  the  sale  is  made  by  them  or  by  others, 


584  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

during  the  period  it  is  under  their  control,  such  custom  amounts 
to  a  contract  when  it  is  known  to  their  customers.  Harrell  v. 
Zimpleman,  66  Tex.  292,  17  S.  W.  478.  See  also  Sees.  599,  626a. 

A  custom  must  be  certain,  uniform  and  generally  understood, 
or  it  is  not  binding  on  the  principal.  Insloe  v.  Jones,  Brightly 
(Pa.),  76;  Pratt  v.  Bank,  12  Phila.  (Pa.)  378;  Colland  v. 
Traped,  70  111.  App.  228 ;  Potts  v.  Aechtermacht,  93  Pa.  St.  138. 
An  offer  to  prove  a  general  custom  among  brokers  acting  for 
both  parties  to  an  exchange  of  lands  to  charge  commissions 
to  each,  held  properly  refused,  for  the  reason  that  it  appeared 
that  the  broker  was  the  agent  of  one  of  the  parties,  and  could 
not  therefore  legally  demand  compensation  from  the  other.  Dartt 
v.  Somnesym,  86  Minn.  55,  90  N.  W.  115. 

To  a  custom  to  the  effect  that  each  owner  should  pay  one-half 
of  the  commission  to  the  broker  for  effecting  an  exchange  of  prop- 
erty available  as  a  binding  custom,  the  broker  must  have  acted 
as  a  middleman  in  the  mutual  interest  of  both  parties,  without 
being  the  authorized  agent  of  either.  Inman  v'.  Brown,  147  S.  W. 
652,  —  Tex.  Civ.  App.  — . 

That  there  was  a  custom  that  each  party  to  an  exchange  pay 
21/2%  commission  on  his  property  would  not  authorize  recovery 
of  broker's  commission  from  party  to  the  trade  who  knew  nothing 
of  custom.  Yockum  v.  Gassett,  200  S.  W.  582,  —  Tex.  Civ. 
App.  — . 

A  real  estate  agent  seeking  to  recover  commissions  for  nego- 
tiating a  sale,  where  no  contract  was  made  in  regard  thereto, 
may  prove  a  custom  as  to  the  rate  of  commissions  and  the  time 
of  payment  in  the  place  where  the  business  was  done  and  the 
land  sold.  Hansbrough  v.  Neal,  94  Va.  722,  27  S.  E.  593.  See 
Sec.  616. 

A  custom  existing  among  real  estate  brokers,  according  to 
which  a  commission  is  divided,  where  one  broker  has  a  buyer  and 
the  other  a  seller,  is  not  sufficient  to  entitle  the  broker  repre- 
senting the  seller,  but  not  effecting  the  sale,  to  recover  of  a 
broker  who  was  the  procuring  cause  of  the  sale  one-half  of  the 
commissions  earned.  Hedenberg  v.  Seeberger,  140  111.  App.  618. 

The  court  takes  judicial  notice  of  a  custom  that  authority  to 
a  broker  to  sell  land  carries  with  it  the  obligation  to  furnish  an 


PLEADINGS,  PRACTICE,  ETC.  585 

abstract  of  title.     Watkins  v.  Thomas,  124  S.  W.  1063,  141  Mo. 
App.  263. 

In  a  broker's  action  for  commission  on  the  sale  of  a  ranch  and 
personal  property,  under  an  agreement  that  he  was  to  receive  "a 
good  commission,"  it  was  not  error  to  limit  to  5%  of  the  pur- 
chase price,  which  was  the  usual  rate  prevailing  among  local 
agents,  and  constituted  a  reasonable  compensation.  Burger  v. 
Cole,  194  P.  611,  —  Colo.  Sup.  — . 

Sec.  626a.    Custom  insufficient  to  supply  lack  of  employment 
as  broker. 

The  existence  of  a  custom  to  the  effect  that  when  brokers 
negotiate  a  lease  of  real  property  the  lessor  pays  the  commis- 
sion, can  not  fasten  on  a  property  owner  any  liability  as  the 
employer  of  the  broker,  simply  because  he  leases  the  prop- 
erty to  one  introduced  by  the  broker  to  take  it,  without  any 
request,  express  or  implied,  on  the  part  of  the  owner.  Brady 
v.  American  M.  &  E.  Co.,  83  N.  Y.  S.  663,  86  App.  Div.  267. 
See  also  Sec.  626. 

Sec.  627.    Defendant  can  not  object  where  evidence  shows 
sale  for  less  than  broker  claims. 

In  an  action  for  commissions  for  selling  land,  where  the 
petition  alleges  that  the  tract  contained  thirty-five  acres  and 
that  the  purchaser  agreed  to  purchase  it  "for  the  sum  of  $200 
per  acre,  and  in  the  aggregate  for  the  sum  of  $7,000,"  and 
that  defendant  agreed  to  pay  plaintiff  five  per  cent,  for  pro- 
curing a  purchaser,  and  the  evidence  shows  that  the  land  dis- 
posed of  contained  forty-two  acres,  and  was  sold  for  $7,000, 
but  after  the  sale  the  tract  was  found  to  contain  only  thirty- 
five  acres,  whereupon  defendant  made  the  sale  for  $6,500, 
judgment  for  five  per  cent,  on  the  $6,500  is  warranted,  and 
defendant  can  not  object  that  the  pleading  alleged  a  sale  for 
$200  an  acre,  while  the  evidence  showed  a  sale  for  less  than 
that  sum.  Hoefling  v.  Hambleton,  84  Tex.  517,  19  S.  W.  689. 

Sec.  628.    Presumptions. 

Any  one  dealing  with  a  person  whom  he  knows  to  be  a  bro- 
ker may  be  presumed  to  know,  from  the  nature  of  the  broker's 


586  AMERICAN  LAW  EEAL  ESTATE   AGENCY. 

business,  that  he  is  acting  as  agent  for  some  third  person. 
Baxter  v.  Doren,  29  Mo.  434.  The  fact  that  a  real  estate  agent 
had  been  licensed  for  a  number  of  years  and  had  a  license  at 
the  time  of  a  certain  trial  to  recover  commissions  in  another 
case  does  not  raise  a  presumption  that  he  had  a  license  at 
the  time  of  the  transaction  for  which  commissions  are  sought 
to  be  recovered.  EcJcert  v.  Collot,  46  111.  App.  361. 

The  solvency  and  ability  of  the  proposed  purchaser  to  per- 
form the  obligations  of  his  contract  will  be  presumed  until  the 
contrary  is  proved.  Grosse  v.  Cooley,  43  Minn.  188,  45  N.  "W. 
15.  (This  is  contrary  to  the  general  doctrine.)  Where  a  ven- 
dor accepts  the  purchaser  proposed  by  the  broker  and  enters 
into  a  contract  with  him,  the  solvency  of  the  purchaser  will 
be  presumed,  in  the  absence  of  proof.  Parker  v.  Estabrook, 
68  N.  H.  349,  44  A.  484;  Springer  v.  Orr,  82  111.  App.  558; 
McFarland  v.  Lillard,  2  Ind.  App.  160,  28  N.  E.  229;  Grosse 
v.  Cooley,  43  Minn.  188,  45  N.  W.  15.  Compare  Leuschner  v. 
Patrick  (Tex.  Civ.  App.  '07),  103  S.  W.  664. 

Where  a  contract  to  procure  a  purchaser  of  real  estate  has 
been  continued,  or  the  time  within  which  a  sale  was  to  have 
been  made  is  waived,  without  reference  to  the  compensation 
of  the  broker,  the  presumption  is  that  he  is  entitled  to  recover 
the  sum  originally  agreed  upon.  Ice  v.  Maxwell)  61  W.  Va. 
9,  55  S.  E.  899.  An  agency  to  sell  real  estate  is  presumed  to 
continue  until  a  sale  is  effected,  and  the  burden  is  on  the  owner 
to  rebut  such  presumption.  Hartford  v.  McGillicuddy,  103  Me. 
224,  68  A.  860;  U.  8.  Farm  Land  Co.  v.  Darter,  183  P.  696,  — 
Cal.  App.  — .  See  also  Sees.  612,  614. 

In  an  action  for  procuring  a  loan  on  property,  it  can  not  be 
assumed,  in  the  absence  of  evidence,  that  it  was  not  made  be- 
cause of  defendant's  fault  or  because  they  did  not  have  a  good 
title.  Rosenthal  v.  Gunn,  119  N.  Y.  S.  165. 

A  broker  calling  attention  of  purchaser  to  the  property,  exhibit- 
ing it  to  him,  and  effecting  a  sale;  held,  not  required  to  make 
proof,  tending  to  exclude  all  other  inferences,  since  it  will  be 
presumed  that  the  sale  resulted  from  his  efforts.  G.  L.  &  H.  J. 
Gross  v.  TillingJiast,  86  A.  721,  35  R.  I.  298. 

Presumptively  a  broker  who  acted  as  agent  for  the  owner  in 


PLEADINGS,  PBACTICE,  ETC.  587 

the  sale  of  a  farm  was  entitled  to  some  commission.  Grosswiller 
v.  Jansen,  162  N.  W.  45,  —  Iowa  Sup.  — . 

Where  broker's  contract  to  sell  land  at  $100  an  acre  did  not 
authorize  a  sale  on  credit,  the  presumption  is  that  the  sale  was 
to  be  for  cash.  Sanden  &  Huss  v.  Auseribus,  168  N.  W.  801,  — 
Iowa  Sup.  — . 

Fact  that  broker  negotiating  a  loan  received  commission  from 
borrower  does  not  conclusively  establish  that  he  was  the  agent  for 
borrower.  Stephens  v.  Ahrens,  178  P.  863,  —  Cal.  Sup.  — . 

In  a  broker's  action  for  commission,  an  express  contract  is  al- 
leged, and  the  complaint  does  not  show  on  its  face  that  the  con- 
tract was  a  parol  one,  it  will  be  assumed  that  it  was  in  writing, 
as  required  by  Comp.  Laws  1917,  Sec.  5817.  Case  v.  Ralph,  188 
P.  640,  —  Utah  Sup.  — . 

Where  plaintiff  had  received  a  deed,  knowing  that  her  name 
had  been  inserted  as  grantee  by  a  real  estate  broker  after  the 
deed  had  passed  out  of  the  grantee's  hands,  she  could  not  rest  on 
the  presumption  created  by  Gen.  Stat.  1913,  Sec.  8425,  of  due 
execution  and  delivery,  but  was  required  to  show  that  the  broker 
had  actual  or  apparent  authority  to  insert  her  name.  Redding 
v.  Schauble,  177  N.  W.  1099,  —  Minn.  Sup.  — . 

Sec.  629.    Assumpsit. 

An  innocent  vendor  can  not  be  sued  in  tort  for  the  fraud 
of  his  agent  in  effecting  a  sale;  in  such  a  case  the  vendee  may 
rescind  the  contract  and  reclaim  the  money  paid,  and  if  not 
repaid  may  sue  the  vendor  in  assumpsit  for  it,  or  he  may  sue 
the  agent  for  the  deceit.  Kennedy  v.  McKay,  43  N.  J.  L.  288 ; 
Volker  v.  Fisk  (N.  J.  Ch.  '09),  72  A.  1011;  Sterling  v.  Bank 
of  Sparta,  136  Wis.  369,  117  N.  W.  798. 

Sec.  630.    Actions  between  principals  and  agents. 

An  action  by  a  broker  for  his  commissions  will  not  lie  until 
it  is  shown  that  he  has  effected  or  contracted  a  sale  of  the 
property;  unsuccessful  efforts,  however  meritorious,  afford  no 
ground  of  action,  he  loses  his  labor  and  effort  which  he  staked 
upon  success;  his  commissions  are  based  upon  the  contract 
of  sale.  Viaux  v.  Old  South  Society,  133  Mass.  1,  10 ;  Drury  v. 
Neivman,  99  Mass.  256.  See  also  Sec.  563 


588  AMERICAN  LAW  EEAL   ESTATE   AGENCY. 

The  recovery  in  an  action  by  a  principal  against  a  broker 
for  fraudulently  representing  that  the  worthless  property  on 
which  the  loan  was  made  was  good  security,  is  not  affected  by 
the  question  whether  he  shared  the  money  with  or  delivered 
any  part  of  it  to  the  pretended  borrower.  Rubens  v.  Herd, 
121  Cal.  17,  53  P.  432. 

One  who  employed  a  broker  to  sell  his  land  can  not  maintain 
an  action  against  the  broker  to  recover  the  balance  of  the  pur- 
chase money  in  the  hands  of  the  latter  until  a  demand,  and 
an  accounting  on  demand,  has  been  made  and  refused.  Gobin 
v.  Phillips,  12  Ind.  App.  629,  40  N.  E.  929 ;  Shepard  v.  Brown, 
9  Jur.  N.  S.  (Eng.)  195,  78  T.  Rep.  N.  S.  499,  11  W.  Eep.  162. 

Where,  in  an  action  against  brokers  who  had  effected  a  sale 
of  plaintiff's  land,  the  parties  alleged  that  defendants  received 
from  the  purchaser  a  sum  of  money  for  the  use  of  plaintiff 
and  retained  it,  refusing  to  pay  it  over,  the  petition  was  not 
insufficient  for  failing  to  allege  that  defendants  were  authorized 
to  collect  the  money.  Harrison  v.  Lakeman,  189  Mo.  581,  88 
S.  W.  53. 

Where  the  property  of  the  principal  is  sold  by  the  broker  on 
terms  not  authorized,  in  an  action  against  the  latter  for  dam- 
ages caused  by  such  sale,  in  the  absence  of  an  allegation  of 
fraud  on  the  part  of  the  agent,  the  principal  must  plead  a 
return  of  the  consideration  to  the  purchaser  or  an  offer  to  do 
so.  Lunn  v.  Gutkrie,  115  Iowa,  501,  88  N.  W.  1060. 

Plaintiff  agreed  in  writing  to  convey  lands  to  the  order  of 
the  defendant  for  a  price  named,  and  to  pay  him  a  brokerage 
commission  for  effecting  a  sale  of  it;  the  defendant  sold  the 
land  for  a  sum  larger  than  the  price  named  by  the  plaintiff, 
and  retained  the  difference  himself,  and  charged  the  plaintiff 
his  commissions.  Held,  in  an  action  to  recover  the  difference, 
that  the  plaintiff  should  have  been  permitted  to  show  that  his 
property  had  been  and  was  in  the  hands  of  the  defendant  for 
sale  as  a  broker  on  commission  before  and  at  the  time  of  sign- 
ing the  agreement,  as  well  as  what  representations  were  made 
by  the  defendant  as  to  his  object  in  taking  the  agreement,  and 
its  purposes  so  far  as  he  was  concerned,  as,  if  they  were  of 
the  nature  which  the  plaintiff  offered  to  show,  they  had  a  ten- 
dency to  show  that  the  agreement  was  procured  by  fraud  and 


PLEADINGS,  PBACTICE,  ETC.  589 

misrepresentation  on  the  part  of  the  defendant.  Bassett  v. 
Rogers,  165  Mass.  377,  43  N.  E.  180. 

Where  separate  owners  of  part  of  an  entire  piece  of  real 
estate  jointly  employed  a  broker  to  sell  the  entire  tract,  an 
action  may  be  maintained  against  them  jointly  on  the  con- 
tract. McGill  v.  Pressly,  62  Ind.  193.  See  also  Sec.  407.  Where 
an  intending  purchaser  of  land,  who  had  paid  a  sum  as  for 
first  money  to  the  broker  employed  to  sell  it,  refused  to  com- 
plete his  contract  of  purchase  and  waived  the  time  within  which 
he  could  complete  it,  and  the  broker  converted  the  sum  paid, 
the  right  of  the  owner  of  the  land  to  sue  the  broker  for  such 
sum  accrued,  though  the  time  for  the  purchaser's  completion 
of  the  contract  had  not  expired.  M.  L.  Chambers  &  Co.  v. 
Herring  (Tex.  Civ.  App.  '05),  88  S.  W.  371. 

A  broker  under  a  contract  to  procure  a  purchaser  of  real 
estate,  which  stipulated  that  the  owner  was  to  receive  a  specir 
fied  sum  out  of  the  price,  and  that  the  balance  was  to  be  paid 
to  the  broker  as  his  commissions,  does  not  make  out  a  case  for 
the  recovery  of  his  commissions  by  showing  that  he  secured  a 
contract  with  solvent  parties  to  purchase  the  land,  but  must 
show,  either  that  the  owner  received  some  part  of  the  balance 
of  the  price  to  which  the  broker  was  entitled,  or  that  the  par- 
ties who  agreed  to  purchase  were  ready,  able  and  willing  to 
purchase,  and  were  prevented  from  doing  so  by  the  default 
of  the  owner.  Lewis  v.  Briggs,  81  Ark.  96,  98  S.  W.  683.  See 
also  Sec.  535. 

M.  &  W.,  each  claiming  to  have  been  the  procuring  cause 
of  the  sale  of  defendant's  farm,  brought  separate  actions  for 
commissions  against  defendant  in  different  counties;  W.  was 
made  a  party  defendant  to  M.'s  action,  and  filed  an  answer, 
making  it  a  cross-petition  against  defendant,  to  which  defend- 
ant answered  and  M.  filed  a  reply.  Held,  that  W.'s  action 
should  be  dismissed,  and  both  M.  and  W.  should  be  required 
to  interplead  in  the  action  in  which  both  were. parties.  Hop- 
kins v.  Moseley,  31  Ky.  L.  R.  1308,  105  S.  W.  104. 

Where  a  real  estate  agent  employed  by  the  vendor  in  a  sale 
of  land  holds  the  receipt  given  the  purchaser  by  his  principal 
for  money  paid  thereon,  and  afterward  the  sale  is  abandoned 
by  the  vendor  and  the  money  returned  to  the  agent  who  de- 


590  AMERICAN   LAW    REAL   ESTATE    AGENCY. 

livers  up  the  receipt,  he  is  so  far  acting  as  the  agent  of  the 
purchaser  in  the  receipt  of  the  money  that  the  latter  may 
maintain  an  action  against  him  to  recover  it.  Phelps  v.  Brown, 
95  Cal.  572,  30  P.  774.  See  Sec.  25. 

As  a  result  of  the  confidential  relations  existing  between 
the  parties,  and  the  good  faith  required,  if  an  agent,  being 
authorized  to  sell  land  for  his  principal  at  a  fixed  price,  sells 
it  for  a  higher  price,  he  must  account  to  his  principal  for  the 
excess.  McDonald  v.  Fithian,  1  Gilm.  (111.)  269;  Ziegler  v. 
Hughes,  55  111.  288 ;  Meeker  v.  York,  13  La.  Ann.  18 ;  Bruce  v. 
Davenport,  36  Barb.'  (N.  Y.)  349;  Merryman  v.  David,  31  111. 
404;  Kerfoot  v.  flyman,  52  111.  512. 

Plaintiff  alleged  that  he  employed  H.  to  find  a  purchaser  for 
a  farm,  and  that  he  found  a  purchaser  for  a  price  which 
included  the  assignment  of  a  note  and  mortgage  executed  by 
S. ;  that  on  the  day  the  sale  was  to  be  completed  the 
purchaser  handed  H.  a  roll  of  money  and  some  papers,  which 
he  falsely  represented  to  be  the  note  and  mortgage  of  S. 
H.  falsely  and  fraudulently  represented  that  it  was  necessary 
for  him  to  retain  the  papers  to  have  the  assignments  recorded, 
which  plaintiff  permitted  him  to  do;  that  the  papers  so  turned 
over  were  not  in  fact  the  note  and  mortgage  of  S.,  but  two 
notes  executed  by  G.,  which  were  outlawed  and  worthless;  that 
as  soon  as  plaintiff  learned  such  fact  he  refused  to  accept  the 
G.  notes  and  demanded  a  return  of  his  deed,  offering  to  return 
the  consideration,  which  was  refused;  and  that  the  purchaser 
and  H.,  both  of  whom  were  made  defendants,  had  conspired 
to  cheat  and  defraud  plaintiff  and  had  agreed  that  the  G.  note 
should  be  substituted  for  the  S.  note,  and  that  H.  should  rep- 
resent that  the  papers  so  turned  over  were  the  papers  agreed 
to  be  received,  etc.,  and  prayed  judgment  for  damages  sustained 
by  reason  of  defendants'  fraudulent  acts  in  the  sum  of  $2,000. 
Held,  that  the  complaint  stated  a  cause  of  action  ex  delicto 
and  not  on  contract.  Francesi  v.  Hatch,  117  Wis.  242,  93 
N.  W.  1118. 

A  real  estate  broker  who  takes  an  option  for  the  purchase 
of  property  in  his  own  name,  but  in  reality  for  the  benefit  of 
a  customer  to  whom  he  demands  its  conveyance,  having  him- 
self no  interest  in  the  contract  beyond  a  contingent  commission 


PLEADINGS,  PRACTICE,  ETC.  591 

in  case  the  sale  is  made,  can  not  maintain  a  suit  for  specific 
enforcement  of  the  contract,  under  Rev.  Stat.  of  Idaho,  Sec. 
4090,  which  provides  that  every  action  must  be  prosecuted  in 
the  name  of  the  real  party  in  interest,  with  certain  exceptions, 
none  of  which  covers  such  case.  Lawyer  v.  Post,  109  Fed.  512, 
47  C.  C.  A.  491. 

A  complaint  which  alleges  that  defendant  employed  plain- 
tiff to  procure  within  a  specified  time,  "an  acceptance  of  a 
certain  application  made  by  defendant  for  a  loan,"  and  that, 
within  the  time,  plaintiff  procured  a  third  person  "to  accept 
said  application,"  sufficiently  alleges  that  defendant  was  noti- 
fied of  the  acceptance,  though  it  does  not  allege  that  the  de- 
termination of  the  third  person  was  communicated  to  the  de- 
fendant, which  must  be  proved  to  justify  a  recovery.  Morton 
v.  Petit,  117  N.  Y.  S.  364. 

The  broker  described  in  a  contract  for  an  exchange  of  lands, 
which  provides  that  each  party  shall  pay  a  broker's  commission 
of  a  stated  amount,  may  sue  thereon,  though  he  has  not  signed 
it.  Button  v.  Stewart,  135  P.  681,  90  Kan.  602. 

A  broker,  to  recover  commissions  under  contract  entered  into 
in  behalf  of  his  principal,  must  allege  and  prove  either  that  the 
owner  or  purchaser  refused  to  comply,  and  that  the  purchaser 
on  refusal  was  solvent,  or  that  the  question  of  solvency  had  been 
waived.  Harvil  v.  Wilson  Bros.,  74  S.  E.  845,  11  Ga.  App.  156. 

A  complaint,  in  an  action  by  a  broker  for  commissions  on  a 
sale,  which  alleges  that  plaintiff  contracted  to  act  as  agent,  that 
defendant  should  pay  for  the  services  ten  per  cent,  on  the  sales 
made  through  plaintiff's  agency,  and  that  plaintiff  made  a  sale 
of  real  estate  for  $1,000  and  was  entitled  to  a  ten  per  cent,  com- 
mission, states  a  cause  of  action  for  a  ten  per  cent,  commission 
on  such  sale,  as  against  a  demurrer.  Kupfrain  Park  Co.  v.  Run- 
cie,  96  N.  E.  626,  49  Ind.  App.  32. 

That  a  broker,  in  making  a  sale  of  land  on  commission,  for 
which  he  brings  action,  at  the  instance  of  the  owners  procured  a 
loan  on  the  property,  without  which  the  purchaser  would  not 
buy,  being  a  mere  incident  of  the  sale,  may  be  shown  by  him 
without  being  pleaded  in  the  complaint.  American  Trust  Co.  v. 
Goode,  83  S.  E.  550,  167  N.  C.  338 


592  AMEKICAN  LAW  REAL   ESTATE   AGENCY. 

In  a  suit  for  earnest  money  deposited  with  broker  to  bind 
agreement  to  buy  plaintiff's  property,  the  depositary  against  whom 
plaintiff  sought  forfeiture,  after  a  money  judgment,  was  not  a 
necessary  party  defendant.  Maloney  v.  Aschaffenburg,  78  S.  761, 
—  La.  Sup.  — . 

Broker  employed  to  sell  property  and  who  closes  agreement  for 
its  sale,  becomes  under  Eev.  Civil  Code,  art.  3016,  the  agent  of 
both  seller  and  purchaser,  and  where  purchaser  deposits  earnest 
money  seller  can  not  sue  broker  to  recover  it,  without  making 
purchaser  a  party  to  such  suit.  Id. 

Where  plaintiff,  suing  for  procuring  a  lessee,  failed  to  estab- 
lish any  meeting  of  minds  of  defendant  and  lessee  in  making  a 
valid  agreement  on  terms  on  which  plaintiff  testified  defendant's 
agent  authorized  him  to  lease,  plaintiff  failed  to  make  a  cause  of 
action.  Eckstein  v.  Youngs  Mill  Corporation,  172  N.  Y.  Sup. 
354. 

Sec.  631.    Common  counts. 

Under  Burns'  Eev.  Stat.  1901,  Sec.  6629a,  providing  that  no 
contract  for  the  payment  of  any  sum  of  money  for  commissions 
for  procuring  by  one  person  of  a  purchaser  of  real  estate  of  an- 
other shall  be  valid  unless  in  writing,  signed  by  the  owner  of  the 
real  estate,  no  recovery  can  be  had  on  the  common  counts  for 
selling  real  estate  under  oral  employment  therefor.  Beahler  v. 
Clark,  32  Ind.  App.  222,  68  N.  E.  613. 

Where  there  was  a  special  contract  of  employment  of  brokers 
to  sell  certain  real  property,  they  would  not  be  entitled  to  recover 
for  their  services  on  the  common  counts,  unless  the  agreement 
was  executed  and  completed  on  their  part,  or  they  were  prevented 
from  completing  the  sale  within  the  time  limited  in  the  contract 
for  its  completion.  McOonigal  v.  Roughley  (Del.  Super.  '06), 
63  A.  801. 

A  real  estate  broker's  commissions  fully  earned  under  an  ex- 
press contract  may  be  recovered  under  the  common  counts,  and 
the  contract  itself  admitted  in  proof  of  the  particulars  of  the 
general  right  so  set  up.  Eisley  v.  Beaumont,  71  N.  J.  L.  372, 
59  A.  145;  Lawrence  v.  Rhodes,  188  111.  96,  58  N.  E.  910;  Tanner 
v.  Clapp,  139  111.  App.  353;  Edwards  Coal  Co.  v.  Rust  &  8he(- 


PLEADINGS,  PRACTICE,  ETC.  593 

lume,  81  S.  567,  —  Ala.  Sup.  — ;  Morrison  v.  Jackson,  85  S. 
573,  —  Ala.  Sup.  — . 

Proof  in  the  first  instance  that  the  plaintiffs  were  licensed  real 
estate  brokers  is  unnecessary  to  a  recovery  under  the  common 
counts  for  their  commissions.  Munson  v.  Fenno,  87  111.  App.  655. 

Sec.   632.     Petition — Ultimate  facts  to  be  proved  must  be 
pleaded. 

Plaintiff  must  plead  the  ultimate  facts  upon  which  he  relies 
for  a  recovery  else  he  can  not  prove  them.  Burnett  v.  Edling, 
19  Tex.  Civ.  App.  711,  48  S.  W.  775.  To  entitle  him  to  recover 
commissions  on  a  particular  contract  of  employment  he  must 
plead  it.  Armstrong  v.  O'Brien,  83  Tex.  635,  19  S.  W.  268. 

Sec.  632a.    Petitions  in  actions  to  recover  commissions. 

An  action  by  a  real  estate  broker  for  commissions  will  not  lie 
until  he  has  effected  or  procured  a  sale.  Mueller  v.  Bell  (Tex. 
Civ.  App.  '09),  117  S.  W.  993.  (Compare,  when  employed  to 
procure  at  purchaser.)  Bradley  v.  Bower  (Neb.  Sup.  '04),  99 
N.  W.  490.  And  a  complaint  by  a  real  .estate  broker  for  com- 
missions which  alleges  that  defendant  employed  him  to  sell  the 
land  and  agreed  to  pay  him  a  certain  commission  if  he  found  a 
purchaser,  and  that  he  advertised  and  sold  the  land  to  one  who 
paid  the  purchase  money,  and  received  a  deed,  but  that  the  de- 
fendant refused  to  pay  the  broker  his  commissions  is  good  against 
demurrer.  Adams  v.  McLaugTilin,  159  Ind.  23,  64  N.  E.  462; 
Lukin  v.  Halderson,  24  Ind.  App.  645,  57  N".  E.  254;  Cannon  v. 
Castelman,  24  Ind.  App.  188,  55  N.  E.  Ill;  Mullen  v.  Bower, 
22  Ind.  App.  294,  53  K  E.  790 ;  Wright  v.  Beach,  82  Mich.  469, 
46  N.  W.  673;  Lemon  v.  De  Wolf,  89  Minn.  465,  95  N.  W.  316; 
Downey  v.  Turner,  28  K  Y.  App.  Div.  491,  51  N.  Y.  S.  105; 
YarborougJi  v.  Creager  (Tex.  Civ.  App.  '03),  77  S.  W.  645; 
Brockenbrow  v.  Stafford  (Tex.  Civ.  App.  '03),  76  S.  W.  576. 

A  complaint  for  a  commission  is  sufficient  if  it  states  such 
facts  as  will  inform  the  defendant  of  the  nature  of  the  action, 
and  be  so  explicit  that  a  judgment  thereon  will  bar  another  suit 
for  the  same  cause.  Beineke  v.  Wuegler,  77  Ind.  468;  Ackerman 
v.  Bryan,  33  Neb.  515,  50  N.  W.  435. 


594  AMEBICAN   LAW    REAL   ESTATE   AGENCY. 

A  complaint  for  a  commission  by  a  broker  employed  to  sell 
lands  must  allege  in  direct  and  positive  terms  that  he  rendered 
the  services  which  resulted  in  the  sale  of  the  property,  or  that 
he  produced  to  the  principal  a  party  ready,  willing  and  able  to 
purchase  said  property  upon  the  terms  named.  Jacobs  v.  Shenon, 
3  Ida.  274,  29  P.  44;  Booth  v.  Moody,  30  Ore.  222,  46  P.  884; 
Sullivan  v.  Milliken,  113  Fed.  93,  51  C.  C.  A.  79;  Kupfrain 
Park  Co.  v.  Runcie,  96  N.  E.  626,  49  Ind.  App.  32;  Olcott  v. 
McClure,  98  K  E.  82,  50  Ind.  App.  79;  Ball  v.  Davenport,  152 
N.  W.  69,  170  Iowa,  33;  Hazen  v.  Ransom,  64  S.  682,  134  La. 
696;  Moore  v.  Ring,  178  S.  W.  124,  —  Mo.  Sup.  — ;  Shober  v. 
BlacTcford,  127  P.  329,  46  Mont.  194;  Hevia  v.  Wheeloclc,  148  N. 
Y.  Sup.  165,  162  App.  Div.  759 ;  Shelton  v.  Cain,  136  S.  \V.  1155, 
—  Tex.  Civ.  App.  — ;  Lilly  v.  Yeary,  152  S.  W.  823;  Levy  v. 
Dunken  Realty  Co.,  179  S.  W.  699,  den.  re.,  178  S.  W.  984,  - 
Tex.  Civ.  App.  — ;  Fleming  v.  Maxwell,  117  K  E.  210,  --  Ind. 
Sup.  — ;  Woolley  v.  Batchelder,  169  P.  408,  —  Cal.  App.  — ; 
Gibbons  v.  Monongahela  Riv.  Con.  Coal  &  Coke  Co.,  68  Pa.  Super. 
Ct.  232;  Well  v.  Harding,  211  S.  W.  927,  —  Tex.  Civ.  App.  — ; 
Luckey  v.  Daniels,  102  S.  E.  902,  —  Ga.  App.  — . 

A  petition  by  real  estate  brokers  to  recover  commissions,  which 
alleged  that  defendants  requested  them  to  assist  in  trading  land, 
and  agreed  to  pay  plaintiffs  a  reasonable  commission,  and  that 
plaintiff  performed  services  which  were  reasonably  worth  a  stated 
sum,  declares  on  a  quantum  meruit.  Stanley  v.  Whitlow,  168  S. 
W.  840,  181  Mo.  App.  461. 

Where  a  commission  is  due  a  broker  on  a  sale  of  land,  and  he 
foregoes  it  as  consideration  on  an  agreement  to  allow  him  to  sell 
other  land,  on  default  of  his  principal  on  the  second  agreement, 
it  is  not  necessary  to  plead  rescission  of  the  second  contract  to 
recover  the  consideration,  where  he  had  received  nothing  there- 
under, the  bringing  of  the  action  being  sufficient  allegation. 
Shapiro  v.  Benenson,  167  N.  Y.  Sup.  1004,  181  App.  Div.  19. 

In  an  action  for  commissions  by  broker  employed  to  find  a 
purchaser  for  property,  complaint  which  does  not  allege  consum- 
mation of  sale  must  allege  notification  of  principal  that  pur- 
chaser was  found.  Morris  v.  Clark,  80  S.  406,  —  Ala.  Sup.  — . 

Realty  brokers  to  have  cause  of  action  for  commission  on  sale 
of  land  were  required  to  procure  a  purchaser  ready,  able  and  will- 
ing to  pay  promised  price  provided  in  broker's  contract  with 


PLEADINGS,  PRACTICE,  ETC.  595 

sellers,  and  then  allege  fact  in  direct  and  precise  terms.     Mer- 
haley  v.  Fisk,  178  P.  945,  —  Cal.  Sup.  — . 

If  the  complaint  alleges  that  the  defendant  refused  to  con- 
summate the  sale,  it  must  also  allege  that  the  customer  was  able, 
ready  and  willing  to  buy  the  property  on  the  terms  proposed  by 
the  principal,  or  it  is  fatally  defective  on  demurrer.  Sayre  v. 
Wilson,  86  Ala.  151,  5  S.  157;  Reardon  v.  Washburn,  59  111. 
App.  161 ;  Newton  v.  Donnelly,  9  Ind.  App.  359,  36  N.  E.  769 ; 
Brown  v.  Russell,  221  S.  W.  791,  —  Mo.  App.  — . 

Sec.  632b.    When  right  of  action  for  commissions  accrues  to 
a  broker. 

A  petition  by  a  broker  for  commissions  for  effecting  a  sale  or 
exchange  of  property  must  allege  a  contract  of  employment,  and 
a  demurrer  was  sustained  by  reason  of  its  failing  to  do  so.  Toole 
v.  Baer,  91  Ga.  113,  16  S.  E.  378;  Fenwick  v.  Watkins,  25  Ky. 
L.  E.  1962,  79  S.  W.  214.  The  petition  may  properly  set  forth 
the  agreement  between  the  owner  and  the  purchaser  settling  the 
matter  arising  out  of  the  owner's  failure  to  sell,  as  showing  an 
insistence  by  the  proposed  purchaser  on  his  right  to  purchase. 
Wilson  v.  Clark,  79  S.  W.  649,  35  Tex.  Civ.  App.  92.  Where  a 
petition  by  a  broker  employed  to  secure  a  loan  does  not  allege 
that  the  transaction  was  consummated,  it  must  allege  that  plain- 
tiff notified  the  defendant  that  a  lender  was  found.  McLaughlin 
v.  Whiton,  76  N.  Y.  S.  1006,  37  Misc.  838;  Penter  v.  StaigU, 
1  Wash.  365,  25  P.  469.  Where  plantiff  was  to  receive  $1,500 
for  furnishing  a  $25,000  cash  purchaser,  and  furnished  one  who 
purchased  at  $20,000  cash,  he  can  not  recover  proportionate  com- 
missions on  the  lesser  sum,  or  what  his  services  are  reasonably 
worth,  when  he  does  not  declare  on  a  quantum  meruit.  Steinfeld 
v.  Storm,  63  N.  Y.  S.  966,  31  Misc.  167. 

Sec.  632c.    In  action  for  division  of  commission,  broker,  with- 
out agreement,  could  not  enforce  payment. 

Where  in  an  exchange  of  real  estate  the  owners  paicf  commis- 
sions to  the  brokers  with  whom  each  dealt,  but  the  brokers  dis- 
puted the  division  of  the  amount,  and  an  action  between  them 
was  brought  to  determine  to  whom  the  commission  should  ulti- 
mately go,  one  broker,  in  the  absence  of  agreement,  could  not 


596  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

enforce  payment  to  him  of  the  commissions  which  the  owner  had 
made.     Clark  v.  Courtier,  117  K  E.  720,  280  111.  590. 

Sec.  632d.  Broker  entitled  to  recover  commission  for  loan 
when  he  shows  he  procured  person  able  and  willing  to 
lend. 

In  an  action  by  a  broker  for  commissions  for  placing  a  mort- 
gage, it  is  sufficient  to  show  a  request  for  the  service  and  a  tender 
to  prove  complete  performance,  if  he  shows  that  he  procured  a 
person  who  was  able  and  willing  to  loan.  Welch  v.  Dakin,  68 
Pa.  Super.  Ct.  361. 

Sec.  632e.  Petition  failing  to  show  broker  procured  pur- 
chaser able,  etc.,  or  breach  by  seller,  subject  to  demurrer. 

In  a  suit  for  commissions  on  a  sale  of  land,  a  petition  failing 
to  disclose  that  plaintiff  procured  a  purchaser  ready,  able  and 
willing  to  buy,  or  that  defendant  interfered  with  the  sale,  or  de- 
layed its  consummation  until  after  the  expiration  of  contract,  is 
subject  to  general  demurrer,  notwithstanding  an  allegation  that 
immediately  after  the  contract  expired  defendant  sold  the  prop- 
erty to  one  who  had  been  negotiating  with  plaintiff,  in  view  of 
Civil  Code  1910,  Sec.  3587.  Price  v.  Cook,  99  S.  E.  47,  —  Ga. 
App.  — . 

Sec.  633.  Petition  alleging-  failure  to  exchange  defective  in 
alleging  contract  for  purchaser,  no  breach. 

Where  a  petition  alleged  a  failure  of  the  defendant  to  make 
an  exchange  of  property  procured  by  the  plaintiff,  it  was  held 
defective  in  alleging  a  contract  to  procure  a  purchaser,  with  an 
implied  contract  to  pay  a  reasonable  value  of  the  services;  conse- 
quently there  was  no  breach  of  contract  for  which  the  defendant 
was  liable  in  damages  to  the  plaintiff,  and  a  demurrer  was  prop- 
erly sustained.  Mulhall  v.  Bradley,  63  N.  Y.  S.  782,  50  App. 
Div.  179. 

Sec.  633a.  In  action  between  brokers,  facts  which  stated  a 
cause  of  action. 

A  petition  alleging  that  plaintiff  became  associated  with  de- 
fendant firm  as  a  real  estate  broker,  with  an  agreement  that  he 


PLEADINGS,  PKACTICE,  ETC.  597 

should  receive  all  commissions  earned  by  the  firm  on  property 
procured  by  him ;  that  he  listed  with  such  firm  property  previously 
listed  with  him  individually  upon  an  agreement  for  a  certain 
commission;  that  he  brought  the  owner  thereof  to  the  firm's  of- 
fice, and  that  thereafter  defendant  firm  purchased  the  land  for 
themselves  individually,  without  the  consent  of  plaintiff,  with  an 
agreement  that  the  vendor  should  pay  no  commission,  and  that 
plaintiff  had  never  waived  his  right  to  a  commission,  states  a 
cause  of  action.  Burns  v.  Russell  Bros.,  146  S.  W.  707,  —  Tex. 
Civ.  App.  — . 

Sec.  634.  Petition  alleging  sales  to  persons  defective  for  fail- 
ure to  give  names,  etc. 

A  petition  by  an  agent  to  sell  land  to  recover  damages  for 
refusal  of  the  owner  to  execute  deeds  to  purchasers,  which  al- 
leges a  contract  by  him  to  various  persons  who  were  ready  and 
able  to  buy  the  lands  on  the  terms  agreed  on  between  him  and 
the  defendant,  is  defective  for  failure  to  allege  the  names  of 
such  purchasers,  the  quantity  of  land  agreed  to  be  sold  to  each 
of  them  and  the  price.  Burnett  v.  Edling,  19  Tex.  Civ.  App.  711, 
48  S.  W.  775. 

Sec.  635.  Petition  alleging  deed  of  trust  defendant  refused  to 
release  defeating  sale,  not  defective. 

A  petition  which  alleged  that  the  sale  failed  because  of  an 
unsatisfied  deed  of  trust  on  the  property,  which  the  defendant 
failed  to  release  or  have  cancelled,  is  not  defective  in  failing  to 
allege  that  the  deed  was  a  lien  on  the  property,  or  that  de- 
fendant refused  to  consummate  the  sale.  Gerhard  v.  Peck,  42 
Mo.  App.  644. 

Sec.  635a.  Complaint  not  objectionable  for  falling  to  show 
that  plaintiff  found  a  purchaser  on  terms  offered  by  mort- 
gagee. 

A  complaint  alleged  that  a  mortgage  foreclosure  on  land  was 
compromised  by  the  mortgagor  conveying  his  title  to  the  mort- 
gagee, and  in  consideration  the  mortgagee  delivered  a  contract 
giving  the  mortgagor  the  exclusive  sale  of  the  mortgaged  prop- 


598  AMERICAN  LAW  EEAL   ESTATE  AGENCY. 

erty,  and  that  should  he  succeed  in  selling  at  more  than  the 
amount  due  the  mortgagee,  the  excess  should  he  retained  as 
commissions;  that  the  mortgagor  assigned  to  plaintiffs  his  inter- 
est in  the  contract;  that  plaintiffs  sold  the  property  and  tendered 
to  the  mortgagee  the  amount  due  it,  and  that  plaintiffs  were  at 
all  times  willing  to  perform,  and  had  performed  all  the  condi- 
tions of  the  contract,  is  not  subject  to  the  objection  that  it  fails 
to  allege  that  plaintiffs  found  a  purchaser  on  the  terms  offered 
by  the  mortgagee,  and  clearly  shows  that  a  sale  was  made  so  as 
to  secure  the  mortgagee  all  it  could  claim  under  the  contract. 
Chatfield  v.  Continental  B.  &  L.  Ass'n,  6  Cal.  App.  665,  92  P. 
1040. 

Sec.  636.    Petition  that  broker  was  to  have  all  over  a  certain 
sum,  not  breached  by  owner  selling  at  net  price. 

Where  a  petition  alleged  that  plaintiffs  were  employed  to  sell 
defendant's  land,  that  they  were  to  have  all  they  could  obtain 
for  it  over  a  certain  sum,  and  that  they  offered  it  to  one  who  pur- 
chased it  of  defendant  for  that  sum,  they  could  not  recover  the 
reasonable  value  of  their  services  on  an  implied  contract  on  the 
ground  that  the  defendant  had  accepted  the  benefit  of  their  ser- 
vices; and  plaintiffs  could  not  recover  of  defendant  for  breach 
of  an  agreement  that  he  would  ask  the  sum  fixed  by  the  brokers 
of  any  customer  who  came  to  him,  where  the  complaint  did  not 
allege  such  a  contract.  Ames  v.  Lamont,  107  Wis.  531,  83  N.  W. 
780. 

Sec.  636a.    When  proper  to  withdraw  case  from  the  jury  and 
enter  a  judgment  of  dismissal. 

Where  it  appears  from  the  record  that  counsel  for  plaintiff,  in 
the  statement  of  the  case  to  the  jury,  stated  in  detail  all  the  evi- 
dence that  plaintiff  proposed  to  offer  in  support  of  the  allegations 
in  his  petition,  and  where  it  further  appears  that  after  the  suffi- 
ciency of  his  statement  was  challenged,  he  was  given  full  and  fair 
opportunity  to  explain  and  qualify  his  statement,  and  make  such 
additions  thereto  as,  in  his  opinion,  the  proofs  at  his  command 
would  establish,  and  with  such  explanation  and  qualification  as 
counsel  desire  to  make,  it  is  still  apparent  that  the  facts  proposed 
to  be  proven  would  not  sustain  the  essential  averment  of  the  peti- 


PLEADINGS,  PRACTICE,  ETC.  599 

tion,  and  would  not  authorize  a  verdict  and  judgment  for  plaintiff, 
it  is  the  duty  of  the  trial  court  to  sustain  a  motion  to  withdraw 
the  case  from  the  jury  and  enter  a  judgment  dismissing  plain- 
tiff's petition  and  for  costs.  Cornell  v.  Morrison,  87  0.  S.  215. 

Sec.  637.    Petition  declaring  on  express  contract,  on  failure  to 
prove  may  recover  on  promise  to  pay  certain  per  cent. 

Although  the  plaintiff  declared  on  an  express  contract  to  pay 
him  all  that  he  could  sell  a  tract  of  land  for  over  a  certain  sum, 
he  may  recover  on  the  further  allegation  of  an  express  promise 
of  defendant  to  pay  him  a  certain  percentage  commission,  where 
the  broker  said  he  was  in  the  habit  of  receiving  five  per  cent, 
commission  on  sales,  to  which  the  defendant  did  not  dissent. 
Armstrong  v.  Cleveland,  32  Tex.  Civ.  App.  482,  74  S.  W.  789; 
Bab  v.  Hirschbein,  12  N.  Y.  S.  730. 

Sec.  637a.    Necessary  allegations  and  proof  to  enable  broker 
to  recover  commissions  for  effecting  a  sale  or  exchange. 

Under  a  written  agreement  of  a  land  owner  to  pay  a  broker 
a  certain  sum  if  he  would  send  or  cause  to  be  sent  to  the  land 
owner  a  person  with  whom  the  latter  "may  see  fit  and  proper 
to  effect  a  sale  or  exchange"  of  the  land,  the  broker  can  not  re- 
cover the  sum  stipulated,  without  proof  of  a  sale  or  exchange 
of  the  land;  nor  on  a  quantum  meruit  for  services  in  negotiating 
for  such  a  sale  or  exchange,  without  proof  that  such  negotiations 
were  rendered  fruitless  by  the  fault  of  the  land  owner.  Walker 
v.  Terrill,  101  Mass.  257. 

Sec.  637b.    Petition  sufficiently  setting  out  contract  with  firm 
of  real  estate  brokers  to  sell  land. 

The  petition  of  C.,  K.  &  B.  alleging  that  plaintiffs  are  a  real 
estate  firm,  that  defendant  placed  land  in  the  hands  of  C.  &  K. 
to  sell,  and  agreed  to  pay  them  a  commission  for  selling  it,  that 
they  sold  it,  and  that  after  the  contract  between  defendant  and 
C.  &  K.  was  made,  C.  &  K.  formed  a  partnership  with  B.  and  he 
thereby  became  interested  in  said  contract,  sufficiently  charges, 
as  against  the  claim  of  variance,  that  defendant  contracted  with 
C.  &  K.  as  partners.  Cook  v.  Plait,  126  Mo.  App.  553,  104  S. 
W.  1131.  Compare  Sec.  37.  Mechem  on  Ag.,  Sec.  221. 


600  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  638.  Petition,  plaintiff  can  not  recover  on  proof  of  con- 
tract  substituted  for  that  sued  on. 

Plaintiff  can  not  recover  on  proof  of  a  contract  other  than 
that  declared  on.  Daley  v.  Russ,  86  Cal.  114,  24  P.  867;  Kid- 
man v.  Garrison,  122  Iowa,  215,  97  N.  W.  1078;  Jones  v.  Pen- 
dleton,  134  Mich.  460,  96  N".  W.  574;  Brady  v.  Barnett,  34  Tex. 
Civ.  App.  433,  78  S.  W.  965. 

Sec.  639.  Petition,  failing  to  prove  agreed  compensation,  re- 
covery of  reasonable  value  may  be  had. 

It  has  been  held  on  a  petition  to  recover  an  alleged  agreed 
compensation  for  services  as  broker,  a  recovery  may  be  had  on 
proof  of  the  reasonable  value  of  the  services,  and  the  variance 
may  be  disregarded  unless  it  appears  that  defendant  was  misled. 
Susdorf  v.  Schmidt,  55  K  Y.  319.  Compare  Sec.  587. 

Sec.  640.  Petition  alleging  plaintiff  acted  as  broker,  secured 
purchaser,  defendant  refused  deed,  good  against  demur- 
rer. 

A  complaint  alleged  that  plaintiff  acted  as  broker  for  defend- 
ant and  secured  a  purchaser  for  his  land,  but  that  defendant  re- 
fused to  make  a  deed  therefor,  and  that  plaintiff  was  entitled  to 
his  commissions.  Held,  to  show  a  cause  of  action  and  to  be 
good  on  demurrer  for  the  want  of  facts.  Beincke  v.  Weugler,  77 
Ind.  468;  Long  v.  Thompson,  73  Kan.  76,  84  P.  552;  Yoder  v. 
Eandol,  16  Okl.  308,  83  P.  537,  3  L.  R.  A.  576;  Rempel  v.  Hop- 
kins, 101  Minn.  3,  111  N.  W.  385;  Ackerman  v.  Bryan,  33  Neb. 
515,  55  N.  W.  435;  Ross  v.  Carr  (N.  M.  Sup.  '09),  103  P.  307; 
Harshman  v.  Mercer,  109  A.  437,  —  Md.  Sup.  — . 

Sec.  640a.  Petition  for  commissions  not  demurrable  for  fail- 
ing to  allege  customer  was  ready,  able  and  willing  to 
purchase. 

In  an  action  by  brokers  on  a  contract  whereby  they  agreed  to 
procure  for  defendant  a  customer  for  her  property  at  a  specified 
price,  a  complaint  alleging  a  compliance  with  the  contract  by 
plaintiffs  was  not  demurrable  for  failing  to  allege  that  the  cus- 


PLEADINGS,  PRACTICE,  ETC.  601 

tomer  was  ready,  able  and  willing  to. pay  for  the  property.  Luns- 
ford  v.  Bailey,  142  Ala.  319,  38  S.  362 ;  Keinath,  Schuster  &  Hud- 
son v.  Reed,  137  P.  841,  18  N.  M.  358. 

A  complaint  pleading  employment  as  a  broker  to  sell  land 
for  a  commission  on  amount  collected  by  him  from  purchasers, 
under  agreement  that  defendant  should  give  at  least  one  week's 
notice  in  writing  to  plaintiff  of  defendant's  intention  to  cancel 
any  contract  procured  by  him  for  default  by  purchasers,  and 
alleging  cancellation  without  notice  to  him,  of  contracts  pro- 
cured by  him,  and  claiming  as  damages  the  percentage  which 
he  would  have  received  on  payment  by  the  purchasers  of  the  un- 
paid instalments,  etc.,  is  sufficient  as  against  demurrer,  though  it 
fails  to  allege  the  financial  ability  of  the  purchasers  to  pay  the 
unpaid  instalments.  Benequit  v.  N.  Y.  &  N.  J.  Real  Estate  Imp. 
Co.,  133  K  Y.  Sup.  226,  148  App.  Div.  628. 

Where  it  is  alleged  that  the  seller  actually  sold  the  premises 
to  a  purchaser  with  whom  the  broker  was  negotiating  upon  the 
specified  terms,  it  is  not  necessary  to  allege  that  the  proposed 
purchaser  was  ready,  able  and  willing  to  buy.  Williams  v.  At- 
kinson, 214  S.  W.  504,  —  Tex.  Civ.  App.  — . 

Sec.  641.    Petition,  on  contract  to  pay  if  sale  made  by  owner, 
agent  may  recover  without  showing  performance. 

Defendant  made  complainant  his  agent  to  sell  certain  lands, 
the  agency  to  continue  for  six  months,  unless  sooner  terminated 
by  a  sale;  defendant  reserved  the  right  to  sell  the  land  him- 
self, in  which  case  plaintiff  was  to  receive  the  same  fee  as  if  he 
had  sold  it;  within  seventeen  days  after  making  the  contract  de- 
fendant sold  the  land  and  plaintiff  sued  for  his  fees.  Held,  that 
the  plaintiff  need  not  expressly  allege  that  he  had  performed  the 
contract  on  his  part.  Singleton  v.  O'Blevis,  125  Ind.  151.  Com- 
pare Wolff  v.  Demboslcy,  74  N.  Y.  S.  465,  36  Misc.  643,  66  A.  D. 
428.  See  Sec.  948. 

Sec.  641a.    Broker's  action  for  commission  for  breach  of  de- 
fendant's contract  therefor  did  not  need  to  allege  fraud. 

Realty  brokers'  petition  based  on  violation  of  defendant's  con- 
tract to  pay  commission,  and  not  upon  fraud  of  defendant  in 


602  AMERICAN  LAW  EEAL  ESTATE   AGENCY. 

trying  to  cover  up  sale  to.  third  person,  did  not  have  to  allege 
fraud.    Luzzadder  v.  McCall  198  S.  W.  1144,  —  Mo.  App.  — . 

Realty  broker  suing  for  commissions  did  not  have  to  plead  to 
whom  defendant  sold  farm  through  third  person,  or  to  plead  evi- 
dence by  which  it  would  be  established.  Id. 

Sec.  642.    Petition  to  recover  money  broker  refuses  to  pay 

need  not  allege  he  had  authority  to  collect. 
Where,  in  an  action  against  a  broker  who  had  effected  a  sale 
of  plaintiff's  land,  the  petition  alleged  that  defendant  received 
from  the  purchaser  a  sum  of  money  for  the  use  of  plaintiff 
and  retained  it,  refusing  to  pay  it  over,  the  petition  was  not 
insufficient  for  failing  to  allege  that  defendants  were  author- 
ized to  collect  the  money.  Harrison  v.  Lakeman,  189  Mo.  581, 
88  S.  W.  53. 

Sec.  642a.    Broker  held  not  liable  to  pay  to  principal  money 

refunded  to  purchaser  on  rejected  contract  of  sale. 
Plaintiffs  authorized  defendant  to  sell  land  for  them,  no  terms 
being  stated  in  the  agreement,  at  a  certain  price  within  five 
days,  agreeing  to  pay  as  commission  whatever  the  land  brought 
over  the  price  fixed.  Defendant,  found  a  purchaser  who  paid 
down  a  bonus  on  condition  that  if  the  title  was  not  insured 
by  a  certain  title  insurance  company,  the  bonus  was  to  be  re- 
funded. The  title  was  not  insured  and  defendant  refunded  the 
money  paid.  Plaintiffs  then  sued  defendant,  claiming  that  it 
had  received  this  money  as  plaintiffs'  agent.  Held,  that  de- 
fendant was  more  than  a  mere  agent  of  plaintiffs,  the  agree- 
ment being  in  the  nature  of  an  option  for  five  days,  and  de- 
fendant was  not  liable  for  such  money.  Robinson  v.  Easton, 
28  P.  796,  93  Cal.  80. 

Sec.  642b.    Broker  receiving  money  for  his  principal  not  liable 

to  repay  on  suit  by  party  entitled  thereto. 
An  agent  receiving  money  for  his  principal    in  pursuance 
of  a  valid  authority    without  fraud,  duress  or  mistake,  is  not 
liable  to  an  action  in  behalf  of  the  person  who  is  ultimately 


PLEADINGS,  PRACTICE,  ETC.  603 

entitled  to  the  money,  for  neglecting  to  pay  the  same  upon 
request,  and  before  it  was  paid  over  to  the  principal.  Colvin 
v.  Holbrook,  2  N.  Y.  126;  Costigan  v.  Newland,  12  Barb.  (N. 
Y.)  456.  See  also  Sec.  384. 

Sec.  642c.    Circumstances    under    which    party    entitled    to 
money  may  sue  the  agent  for  its  recovery. 

Where  money  was  paid  to  an  agent  on  a  purchase  of  land, 
under  circumstances  showing  bad  faith,  as  where  it  was  the 
design  of  the  vendor  to  put  upon  the  purchaser  a  defective 
title,  the  latter  is  entitled  to  a  return  of  his  money,  and  he 
will  not  be  required  to  pursue  the  principal,  but  may  sue  the 
agent  for  a  recovery  of  the  money,  although  he  knew  at  the 
time  of  paying  the  money  to  the  agent  that  the  latter  was 
acting  in  that  capacity;  because,  if  the  vendor  or  his  agent 
knew  at  the  time  of  the  contract  that  the  vendor  had  no  title 
to  the  land,  it  was  a  palpable  fraud  and  the  purchaser  was 
entitled  to  rescind  the  contract;  payment  of  the  money  over 
to  the  principal,  without  notice  of  the  fraud  on  the  part  of 
the  agent,  or  notice  not  to  pay  it  over,  would  be  a  good  de- 
fense, but  the  agent  should  prove  such  payment  over,  as  the 
law  will  not  presume  it.  Shepherd  v.  Underwood,  55  111.  475; 
Hurford  v.  Norvall,  145  P.  1060,  39  Okl.  496. 

Sec.  643.    Petition  alleging  sale  by  owner  ending  contract 

demurrable  for  failure  to  allege  sale  by  agent. 
Defendant  listed  certain  property  with  plaintiff  for  sale  un- 
der a  contract  providing  that  when  the  land  was  sold,  or  when 
plaintiff  performed  its  part  of  the  contract  defendant  was  to 
pay  five  per  cent,  commissions  and  all  that  the  land  was  sold 
for  over  the  sum  specified;  that  plaintiff  was  to  advertise  the 
land  for  sale,  and  that  by  selling  the  land  himself  or  by  giv- 
ing plaintiff  thirty  days'  notice,  defendant  might  terminate 
the  agreement,  which,  in  either  event,  should  be  considered  as 
performance  on  plaintiff's  part;  the  first  land  company  that 
sold  was  to  get  the  commissions,  and  the  rest  to  claim  no  com- 
mission; plaintiff  alleged  that  defendant  terminated  the  agree- 
ment by  a  notice  that  he  had  sold  the  land.  Held,  that  under 
such  contract  it  was  entitled  to  a  commission  only  in  case  it 
actually  made  a  sale  of  the  land,  and  that  the  petition  was 


604  AMERICAN  LAW  REAL   ESTATE   AGENCY. 

therefore  demurrable.  Iowa  Land  Co.  v.  Schoenewe  (Iowa  Sup. 
'05 ),  102  N.  W.  817.  See  also  Sec.  15. 

A  complaint  in  a  broker's  action  alleging  that,  at  the  instance 
of  defendant,  he,  plaintiff,  employed  a  title  company,  whose  ser- 
vices were  worth  $3,500,  for  which  plaintiff  was  responsible,  was 
demurrable  for  not  alleging  performance  of  the  services  by  such 
company.  Hevia  v.  Wheelock,  148  N.  Y.  Sup.  165,  162  App. 
Div.  759. 

In  a  broker's  action  for  commissions  for  procuring  buyer  for 
real  estate,  petition  alleging  exclusive  right  by  broker  to  sell 
property  until  certain  date,  and  sale  by  owner  subsequently  as 
such  to  purchaser  procured  by  broker,  but  fails  to  allege  that  pur- 
chaser was  procured  by  broker  within  the  period  during  which 
he  had  exclusive  right  to  sell,  failed  to  state  a  cause  of  action. 
'Aukerman  v.  Brewer,  209  S.  W.  261,  —  Tex.  Civ.  App.  — . 

Sec.  644.    Petition  alleging  notice  of  double  employment  and 
defendant  consented,  not  demurrable. 

Where,  in  an  action  on  a  broker's  contract  for  the  sale  of 
real  estate,  he  alleged  that  after  undertaking  the  sale  for  de- 
fendant he  reported  to  him  that  he  had  a  purchaser  who  had 
offered  him  $5,000  in  cash  to  bring  about  the  purchase,  and 
that  defendant  assented  to  plaintiff's  acceptance  of  the  joint 
employment  and  stated  that  it  would  in  no  wise  interfere 
with  their  contract,  the  petition  was  not  demurrable  as  show- 
ing a  forfeiture  of  plaintiff's  right  by  his  acceptance  of  an 
inconsistent  employment.  Shropshire  v.  Adams,  40  Tex.  Civ. 
App.  339,  89  S.  W.  448. 

A  petition  to  recover  broker's  commissions  which  shows  that 
plaintiff  acted  for  both  parties  is  demurrable,  unless  it  also  al- 
leges that  the  dual  relationship  was  known  and  assented  to  by 
both.  Skirvin  v.  Gardner,  129  P.  729,  36  Okl.  613. 

Sec.  645.    Petition  which  alleged  bringing  parties  into  touch, 
etc.,  insufficient. 

A  petition  praying  for  judgment  for  $2,000,  alleged  that  de- 
fendant, being  the  owner  of  land,  employed  plaintiff,  agreeing 
to  pay  him  all  over  4,000  that  could  be  realized  in  a  sale  of  the 
land;  that  plaintiff  rendered  services  in  looking  up  and  bringing 


PLEADINGS,  PRACTICE,  ETC.  605 

in  touch  with  defendant  on  the  proposition  of  a  sale  of  the  land, 
which  thereafter  was  consummated  for  $6,000  cash.  Held,  in- 
sufficient in  not  alleging  what  plaintiff  was  employed  hy  defendant 
to  do,  or  that  he  either  effected  a  sale,  or  that  it  resulted  from 
any  services  under  his  employment.  Fenwick-  v.  WatTcins,  25  Ky. 
L.  R.  1962,  79  S.  W.  214. 

A  complaint  in  a  broker's  action  which  alleged  that  the  prop- 
erty owner  had  agreed  to  pay  plaintiff  $4,500  for  effecting  an 
exchange,  which  he  was  prevented  from  earning  by  defendant's 
refusing  to  convey,  stated  no  cause  of  action  against  defendant. 
Hevia  v.  Wheelock,  148  N".  Y.  Sup.  165,  162  App.  Div.  759. 

Sec.  646.    Petition  alleging  services  which  defendant  accept- 
ed, good  by  promise  to  pay. 

In  an  action  by  a  real  estate  agent  to  recover  commissions 
for  selling  property,  an  allegation  in  the  petition  that  the  ser- 
vices were  performed  ''for  the  defendant  with  his  consent," 
and  that  he  accepted  the  services  and  consummated  the  trade, 
is  not  sufficient  to  raise  an  implied  promise  to  pay  for  the  ser- 
vices, and  the  petition  would  not  be  good  but  for  the  allegation 
of  an  express  promise  to  pay.  Viley  v.  Pettit,  96  Ky.  576,  16 
Ky.  L.  R.  286,  650,  29  S.  W.  438, 

Sec.  647.    Petition  failing  to  show  written  contract,  alleged 

benefits  to  defendant  immaterial. 

Where  a  petition,  in  an  action  by  a  real  estate  agent  to 
recover  commissions,  fails  to  show  a  written  contract  as  re- 
quired by  statute,  the  fact  that  the  plaintiff  alleges  that  de- 
fendant received  the  benefit  of  his  services  and  therefore  can 
not  be  relieved  of  his  liability  to  pay  for  the  same,  is  imma- 
terial. Covey  v.  Henry,  71  Neb.  118,  98  N.  W.  434;  Smith  v. 
Aultz,  78  Neb.  453,  110  N.  W.  1015. 
Sec.  648.  Petition  setting  forth  incomplete  copies  of  unsigned 

letters  as  contract  demurrable. 

Where  a  petition  sets  forth  letters  alleged  to  have  been  writ- 
ten to  the  parties,  and  to  haVe  created  the  necessary  written 
contract  between  the  owner  of  the  land  and  the  broker,  but 


606  AMERICAN   LAW    REAL   ESTATE    AGENCY. 

does  not  purport  to  give  full  copies,  and  neither  is  there  any 
allegation  that  the  letters  were  signed,  the  petition  is  subject 
to  demurrer.  David  Bradley  v.  Bower  (Neb.  Supreme  '04),  99 
K  W.  490.  See  Sec.  1079. 

Sec.  649.    Petition  for  commissions  on  passing  of  title  defec- 
tive in  not  showing  acts  or  omissions  of  defendant. 

A  complaint  for  broker's  commissions  under  a  contract  where- 
by defendant  agreed  that  in  consideration  of  plaintiff's  pro- 
curing a  contract  to  be  made  with  E.  for  the  purchase  of  cer- 
tain land  of  defendant,  plaintiff  should  receive  a  commission 
in  the  event  of  the  closing  of  title,  and  only  in  the  event  that 
title  should  pass,  except  for  default  of  defendant,  is  insuffi- 
cient in  alleging  only  that  plaintiff  procured  a  contract  for  the 
purchase  of  land  to  be  executed  by  defendant  and  E.,  and  that 
because  of  the  default  of  defendant  the  premises  were  not  con- 
veyed; it  should  show  that  E.  was  ready  to  take  title  to  the 
premises,  and  at  the  time  provided  in  the  contract,  and  the 
particular  acts  or  omissions  of  defendant  which  prevented  the 
passing  of  the  title.  Davis  v.  Silverman,  90  N.  Y.  S.  589,  98 
App,  Div.  305. 

In  an  action  for  commission  on  a  sale  which  failed  because  of 
refusal  of  title,  the  averred  defects  in  the  title  must  be  more 
specifically  shown,  and  plaintiff  must  allege  in  what  respects  the 
abstract  is  defective.  Cunningham  v.  Friendly,  140  P.  989,  70 
Or.  222,  den.  re.,  139  P.  928,  70  Or.  222. 

In  an  action  by  client  against  broker,  who  had  acted  as  such 
in  certain  matters,  a  complaint  concerning  a  real  estate  deal 
which  does  not  state  that  defendant  acted  for  plaintiff  in  the 
transaction  complained  of,  states  no  cause  of  action.  Farrell  v. 
Archibald,  166  N.  Y.  Sup.  1073. 

Where  a  broker's  complaint  alleged  that  commissions  were  to 
be  earned  on  the  passing  of  title,  as  agreed,  but  failed  to  allege 
that  the  title  ever  passed,  or  if  it  failed  to  pass  by  reason  of  any 
fault  on  defendant's  part,  it  was  demurrable.  John  Reis  Co.  v. 
Zimmerli,  140  N.  Y.  Sup.  3,  155  App.  Div.  260. 


PLEADINGS,  PRACTICE,  ETC.  607 

Sec.  649a.    Petition  which  failed  to  state  cause  of  action. 

A  contract  between  the  owner  of  real  estate  and  a  broker 
provided  that  on  a  sale  under  a  certain  option,  which  had  been 
given,  a  commission  should  be  paid  to  the  broker,  of  which  one- 
third  should  be  taken  from  the  cash  portion  of  the  price,  con- 
templates an  actual  sale,  and  a  petition  showing  an  agreement 
to  buy  and  sell,  subject  to  a  deposit  of  "earnest"  by  the  pro- 
posed buyer,  but  which  fails  to  allege  that  a  sale  has  been  made, 
or  that  the  customer  is  willing  to  comply  with  his  agreement  to 
buy  declares  no  cause  of  action.  Jardy  v.  Salmon  Brick  &  Lum- 
ber Co.,  121  La.  457,  46  S.  572. 

Sec.  649b.    Broker's  failure  to  state  performance  of  contract 
stated  no  cause  of  action. 

In  an  action  to  recover  broker's  commission,  plaintiff  alleged 
that  he  was  employed  to  find  a  purchaser  for  the  lease,  furniture 
and  good  will  of  a  hotel  for  the  sum  of  $16,000,  for  a  commission 
of  5%  on  the  gross  amount  of  the  sale,  and  that  plaintiff  intro- 
duced to  defendant,  as  a  prospective  purchaser,  a  party  who,  m 
consequence  of  such  introduction  to  defendant,  purchased  said 
property  for  the  sum  of  $13,500.  Held,  that  the  allegations 
failed  to  apply  facts  showing  performance  of  the  contract  of  em- 
ployment, and  stated  no  cause  of  action.  Ward  v.  Fritz,  129 
N.  Y.  Sup.  399. 

Sec.  650.    Petition  for  procuring  tenant  who  purchased,  bad 

for  not  alleging  employment  to  make  sale. 
A  complaint,  in  an  action  by  a  broker  for  commissions  for 
procuring  a  purchaser  for  real  estate,  alleged  that  he  procured 
a  tenant  for  defendant  for  certain  premises ;  that  a  lease  for  a 
specific  number  of  years  was  executed,  which  reserved  to  the 
tenant  the  privilege  of  purchasing  the  premises  for  a  speci- 
fied sum  at  any  time  within  a  specified  period;  that  before  the 
expiration  of  the  period  he  induced  the  tenant  to  consummate 
the  purchase,  and  that  he  demanded  as  his  commissions  a  speci- 
fied sum,  which  defendant  refused  to  pay,  was  bad  for  failure 
to  allege  the  employment  of  the  broker  to  effect  a  sale.  Morris 
v.  Poundt,  99  N.  Y.  S.  844,  51  Misc.  6 ;  Wefel  v.  Stillman,  151 
Ala.  249,  44  S.  203. 


608  AMERICAN   LAW   EEAL   ESTATE   AGENCY. 

Sec.  650a.     Complaint  defective  for  failure  to  properly  state 
contract  of  employment. 

Complaint  alleging  that  defendant  and  a  third  party,  through 
efforts  of  plaintiff  as  broker,  entered  into  a  written  agreement  for 
exchange  of  certain  property,  as  shown  in  the  annexed  copy,  in 
which  defendant  agreed  to  pay  plaintiff  a  certain  sum  as  broker, 
was  not  an  allegation  of  defendant's  employment.  Costa  v. 
Schetz,  175  N.  Y.  Sup.  476. 

Sec.  651.    Petition  alleging  agreement  to  pay  all  over  a  cer- 
tain sum  as  commissions  on  sale  is  sufficient. 

In  an  action  by  a  real  estate  broker,  the  plaintiff  alleged  that 
defendant  employed  him  to  obtain  for  defendant  a  purchaser 
for  a  certain  piece  of  property,  agreeing  with  plaintiff  that  he 
should  be  paid  for  his  services  all  of  the  purchase  price  above 
a  certain  sum.  Held,  sufficient  in  the  averment  of  the  employ- 
ment of  plaintiff.  Stephens  v;  Bailey,  149  Ala.  256,  42  S.  740; 
Weitbroc  v.  Morris,  163  P.  1119,  —  Colo.  Sup.  — . 

Sec.  652.  Petition  for  commissions  for  selling  bonds  defec- 
tive, should  aver  evil  repute  rendered  sales  impossible. 
Plaintiff  sued  to  recover  commissions  for  selling  bonds  in 
Germany;  the  plaintiff  alleged  that  the  sale  was  not  completed 
because  the  prospectus  furnished  by  defendant  contained  false 
statements;  that  one  defendant  sent  to  Germany  with  plain- 
tiff by  the  defendants  had  such  an  evil  reputation  that  it  pre- 
vented the  sale ;  and  that  defendants  recalled  plaintiff  before  he 
had  reasonable  opportunity  to  complete  the  sales.  Held,  to 
state  no  cause  of  action  for  failing  to  show  that  performance 
was  impossible  because  of  the  bad  repute  of  one  of  the  de- 
fendants, that  being  a  risk  which  was  assumed  by  plaintiff. 
Lenkel  v.  Mitchell,  106  N.  Y.  S.  549,  55  Misc.  395. 

Sec.  653.    Petition  for  commissions  out  of  last  cash  payment 

must  aver  such  payment. 

"Where  a  broker's  contract  for  commissions  provided  that  the 
amount  sued  for  was  payable  out  of  the  last  cash  payment, 
such  payment  constituted  a  condition  precedent  to  any  liability 


PLEADINGS,  PRACTICE,  ETC.  609 

on  defendant's  part  to  pay  such  amount  to  plaintiff;  and  hence 
an  allegation  in  plaintiff's  complaint  that  the  sum  sued  for 
"became  due"  on  a  given  date  was  not  a  sufficient  allegation 
that  the  condition  precedent  had  happened.  Nekarda  v.  Pres- 
lerger,  107  N.  Y.  S.  897,  123  App.  Div.  418. 

Sec.  653a.    Petition  for  commission  from  funds  collected  must 
aver  same  was  adequate  for  the  purpose. 

A  promise  to  pay  a  broker  commission  out  of  a  specified  fund 
to  be  collected  by  him  is  enforceable  only  on  allegation  and  proof 
that  the  fund  named  is  adequate  for  the  payment  demanded. 
Columbia  Realty  Inv.  Co.  v.  Alameda  Land  Co.,  168  P.  64,  re. 
den.,  Id.  440,  —  Or.  Sup.  — . 

Sec.  654.    Petition  not  alleging  agreement  stated  was  made 

does  not  state  a  cause  of  action. 

Plaintiff  sued  to  recover  commissions  for  effecting  an  ex- 
change of  property;  the  contract  provided  that  the  property 
conveyed  by  one  of  the  parties  was  to  be  subject  to  a  mort- 
gage as  by  agreement  to  be  made  between  the  parties ;  there  was 
no  allegation  that  such  agreement  was  ever  made,  or  that  there 
was  ever  an  actual  conveyance.  Held,  that  the  complaint  did 
not  state  a  cause  of  action.  Kahn  v.  Verschleiser,  109  N.  Y.  S. 
663,  57  Misc.  381. 

Sec.  655.    Petition  asking  judgment  for  excess  over  net  price, 

on  refusal  to  sell,  demurrable. 

An  owner  of  certain  realty  listed  it  for  sale  with  brokers, 
and  agreed  that  he  would  sell  the  property  so  listed  for  a  given 
sum  net  to  him;  the  broker  procured  a  purchaser  able,  willing 
and  ready  to  buy  at  a  price  in  excess  of  the  amount  named, 
but  the  owner  refused  to  sell.  Held,  that  the  agreement  did 
not  import  an  offer  on  the  part  of  the  owner  to  pay  the  bro- 
kers the  excess  in  the  amount  which  the  purchaser  was  willing 
to  pay  above  the  sum  named  for  which  the  owner  was  willing 
to  sell  it,  and  a  petition  asking  for  judgment  for  the  excess 
was  demurrable.  Matheney,  Beasly  and  Koon  v.  Godin,  130  Ga. 
713,  61  S.  E.  703.  See  also  Sec.  456. 


610  AMERICAN  LAW    REAL   ESTATE  AGENCY. 

Sec.  656.    Petition  sufficient  without  alleging  sale  for  the 

purpose  of  defrauding  plaintiff. 

The  petition  of  a  broker  for  commissions,  alleging  the  crea- 
tion of  an  agency  for  the  sale  of  land,  that  defendant  author- 
ized plaintiff  to  sell  it  for  a  certain  amount,  agreeing  to  pay 
him  a  fair  per  cent,  commission  therefor,  and  that  defendant 
made  a  special  agreement  in  writing  to  pay  him  such  commis- 
sion if  plaintiff  should  sell  or  negotiate  a  sale  to  B.,  and  that 
a  few  days  thereafter  defendant  himself  sold  and  conveyed 
the  land  to  B.  for  a  less  consideration,  and  that  said  purchaser 
was  procured  by  plaintiff,  under  the  terms  of  the  contract,  states 
a  cause  of  action,  without  any  allegation  that  defendant  made 
the  sale  with  evil  intent,  or  for  the  purpose  of  defrauding 
plaintiff.  Pierce  v.  Nichols  (Tex.  Civ.  App.  '08),  110  S.  W.  206. 

Sec.  656a.    Petition  held  not  defective  as  alleging  a  contract 

in  violation  of  broker's  duty. 

Defendant  B.,  with  whom  G.  had  listed  land  for  sale,  learn- 
ing that  plaintiff  desired  to  purchase  it,  requested  to  be  per- 
mitted to  make  the  sale,  and  informed  plaintiff  that  he  had 
G.  bound  to  sell  the  land  for  $2.50  per  acre  cheaper  than  G. 
would  sell  it  to  plaintiff.  Plaintiff  authorized  B.  to  offer  G. 
the  amount  he  asked  for  the  land,  less  $72  interest  on  the 
land,  if  it  could  not  be  bought  for  less,  B.  agreeing  not  to 
close  the  trade  with  any  other  parties  until  plaintiff  could 
buy  the  property  at  G. 's  price.  B.  informed  plaintiff  that  G. 
refused  to  take  less  than  $2.850  and  the  $72  interest,  and  that 
the  offer  at  that  price  would  be  kept  open  until  the  next  day; 
but,  pending  the  negotiations,  B.  and  the  two  other  defendants 
purchased  the  land  for  themselves,  to  plaintiff's  damage.  Held, 
that  a  petition  alleging  such  facts  was  not  defective  as  alleging 
a  contract  between  plaintiff  and  B.,  which  was  invalid  as  a 
violation  of  B.'s  duty  to  G.  Bass  v.  T albert  (Tex.  Civ.  App. 
'08),  112  S.  W.  1077. 

Sec.  656b.    Petition  against  broker  for  fraud  in  exchange  of 
land. 

A  petition  alleging  the  relation  of  principal  and  broker,  and 
charging  the  broker  with  fraud  whereby  the  principal  contracted 


PLEADINGS,  PRACTICE,  ETC.  611 

for  exchange  of  property,  to  get  rid  of  which  he  had  to  expend 
and  obligate  himself  to  the  extent  of  $2,000,  stated  a  good  cause 
of  action  against  the  broker.  Myers  v.  Adler,  176  S.  W.  538,  188 
Mo.  App.  647. 

Sec.  656c.    Petitions  held  demurrable. 

A  count  of  a  petition  in  an  action  on  a  written  contract  to  pay 
a  commission  on  a  sale  of  land,  which  contract  provided  for  a 
sale  within  90  days,  is  demurrable,  where  it  does  not  aver  per- 
formance within  60  days,  or  plead  matter  relieving  against  such 
provision.  Osborne  v.  Dannait,  149  N".  W.  913,  167  Iowa,  615. 

Where  a  memorandum  for  the  exchange  of  property  stated 
that  the  broker's  commission  was  to  be  a  certain  percentage,  but 
did  not  contain  an  agreement  to  pay  it,  an  allegation  that  the 
plaintiff  refused  to  make  the  exchange  or  to  comply  with  the 
terms  of  the  memorandum  is  not  an  allegation  of  non-payment  of 
the  commission.  John  Reis  Co.  v.  Post,  147  N".  Y.  Sup.  845, 
162  App.  Div.  463. 

An  allegation  in  an  action  for  a  broker's  commission,  that  the 
executrix  of  the  vendor  of  the  property  had  unreasonably  rejected 
a  claim  against  the  estate  for  the  amount  of  the  commission  does 
not  amount  to  an  allegation  that  the  commission  had  not  been 
paid.  Id. 

A  complaint  for  a  broker's  commission  which  does  not  allege 
that  the  commission  had  not  been  paid,  is  insufficient  under 
Civil  Code  Proc.,  Sec.  481,  subd.  2,  requiring  the  complaint  to 
contain  a  plain  statement  of  the  facts  constituting  the  cause  of 
action.  Id. 

A  complaint  by  a  broker  for  commissions  for  procuring  a  pur- 
chaser of  real  estate,  which  proceeds  on  the  theory  that  the  owner 
placed  the  property  in  the  hands  of  the  broker  for  sale  on  speci- 
fied terms,  that  subsequently  the  terms  were  modified,  and  that 
the  owner  wrongfully  refused  to  convey,  is  not  predicated  on  any 
theory  that  the  owner  deceived  or  defrauded  the  broker.  Little 
v.  Gorman,  114  P.  321,  39  Utah,  63. 

In  an  action  against  a  real  estate  broker  who  had  the  exclusive 
sale  of  a  piece  of  real  estate  to  recover  one-half  the  commission 
which  the  plaintiff  claimed  that  the  defendant  had  promised  to 


61&  AMERICAN  LAW   BEAL  ESTATE  AGENCY. 

him,  if  he  would  reveal  the  name  of  a  purchaser,  the  statement 
of  claim  is  fatally  defective,  if  it  merely  avers  the  agreement,  and 
that  the  plaintiff  had  revealed  the  name  of  the  purchaser,  but 
fails  to  aver  that  the  defendant  continued  as  the  agent  for  the 
sale  of  the  property  until  it  was  actually  sold  to  the  person  named 
by  plaintiff,  or  that  the  sale  was  in  fact  the  result  of  any  action 
of  the  defendant.  Neiman  v.  THiberi,  47  Pa.  Super.  Ct.  7. 

Where  plaintiff,  suing  to  cancel  a  note  and  mortgage  pursuant 
to  an  agreement  that  they  would  be  cancelled  as  compensation  for 
services  as  a  broker,  alleged  that  they  had  been  merged  in  a  new 
note  and  mortgage,  he  was  not  entitled  to  the  relief  asked  without 
pleading  and  proving  facts  sufficient  to  void  the  new  note  and 
mortgage.  Shriver  v.  McCann,  155  S.  W.  317,  —  Tex.  Civ. 
App.  — . 

Though  the  complaint,  alleging  contract  that  plaintiff  should 
"render  services"  to  defendants,  as  defendants'  brokers  and  agents, 
in  negotiating  and  procuring  for  them  a  lease,  with  an  option  to 
purchase,  contains  a  general  allegation  of  performance  by  him 
of  all  conditions  of  the  contract,  yet  its  special  allegation  of  per- 
formance by  him  of  all  the  conditions  of  the  contract,  and  that 
he  "rendered  certain  services'7  in  procuring  a  lease,  which  con- 
tained an  option  to  purchase,  renders  it  insufficient  as  indicating 
there  was  a  falling  short  of  due  performance.  Kidder  v.  Gavin, 
176  N.  Y.  Sup.  776. 

A  complaint  alleging  that  on  a  specified  date  defendant  con- 
tracted to  sell  mining  claims,  that  plaintiff,  at  defendant's  instance 
and  request  negotiated  such  sale,  that  on  the  date  specified  de- 
fendant, in  consideration  of  said  services,  agreed  to  pay  plaintiff 
specified  commissions,  and  that  certain  payments  were  thereafter 
made,  did  not  show  that  the  services  were  rendered  pursuant  to 
an  express  contract  of  employment.  Case  v.  Ralph,  188  P.  640, 
—  Utah  Sup.  — . 

Under  Comp.  Laws  1917,  Sec.  5817,  the  complaint  in  a  broker's 
action  for  commissions  for  selling  land  must  allege  an  express 
contract,  either  by  stating  it  in  full  or  by  stating  its  legal  effect, 
and  it  must  appear  from  the  contract  that  the  agent  was  autho- 
rized to  sell  and  the  amount,  terms  and  conditions  upon  which 
his  commission  was  to  be  paid.  Id. 

Where  complaint,  in  an  action  for  commission  for  making  a 


PLEADINGS,  PBACTICE,  ETC.  613 

loan,  alleged  plaintiff  had  performed  all  conditions  precedent, 
and  specified  acts  of  performance  by  him,  and  where  a  corporate 
company  required  performance  of  conditions  precedent  by  plain- 
tiff and  a  specified  loan  company,  and  where  the  facts  alleged  did 
not  show  due  performance,  a  general  allegation  thereof  did  not 
show  due  performance,  in  view  of  Comp.  Laws  1913,  Sec.  7461. 
Felton  v.  Nurnberg,  179  N.  W.  720,  —  N.  D.  Sup.  — . 

Sec.  656d.    Petitions  held  sufficient. 

A  broker's  declaration  for  commissions  alleging  that  he  pro- 
cured a  purchaser,  and  that  the  owner  refused  to  consummate 
the  sale,  is  not  insufficient  for  failure  to  allege  that  the  owner 
was  advised  who  the  purchaser  was.  Coppage  v.  Howard,  96  A. 
642,  127  Md.  512. 

Eealty  broker's  complaint  against  another  broker  held  to  state 
cause  of  action,  on  the  theory  that  defendant  agreed  with  plain- 
tiff to  try  to  effect  sale,  and  he  submitted  offers  to  plaintiff  on 
consideration  plaintiff  would  pay  2%%  commission,  but  that 
defendant  submitted  offer  to  owner  and  so  secured  five  per  cent. 
Gerard  v.  Cross  &  Brown  Co.,  165  K  Y.  Sup.  819,  178  App.  Div. 
612. 

Petition  of  a  broker  against  landowner  stating  that  but  for 
defendant's  failure  to  designate  land  for  sale,  and  fixing  prices 
and  terms,  according  to  his  contract,  the  land  would  have  been 
sold  at  a  reasonable  price  yielding  certain  commissions;  held,  suf- 
ficient, without  statement  as  to  whom  plaintiff  could  have  sold. 
Dauglierty  v.  Smith,  192  S.  W.  1131,  —  Tex.  Civ.  App.  — . 

Unless  the  contract  of  employment  stipulates  to  the  contrary, 
the  procurement  of  a  binding,  written  contract  between  his  em- 
ployer and  his  customer  is  not  necessary  to  complete  performance 
of  his  duties  on  the  part  of  the  broker,  provided  the  employer  is 
in  a  position  to  execute  it  himself.  Eldorado  Coal  Co.  v.  Rust  & 
Shelburne,  81  S.  567,  —  Ala.  Sup.  — . 

Where  a  petition  in  broker's  action  for  commission  set  up  a 
cause  of  action  based  upon  contract  of  listment,  and  no  special 
objections  were  entered  and  preserved  setting  up  insufficiency  of 
averment  as  to  plaintiff's  contract  with  defendant,  and  the  aver- 
ment as  actually  made  authorized  the  admission  of  plaintiff's  evi- 


614  AMERICAN   LAW  EEAL   ESTATE   AGENCY. 

dence  establishing  the  contract  of  listment  sued  on,  and  defend- 
ant's breach,  the  petition  was  sufficient.  Pope  v.  Peeples,  101  S. 
E.  303,  —  Ga.  App.  — . 

In  an  action  by  a  broker  engaged  to  procure  a  loan  to  recover 
commission,  the  complaint,  though  not  alleging  in  terms  that  the 
broker  was  ready,  willing  and  able  to  furnish  a  loan,  held  suffi- 
cient to  state  a  cause  of  action.  Ky.  Mtge.  Securities  Co.  v. 
Hammond,  218  S.  W.  714,  —  Ky.  Ct.  App.  — . 

A  complaint  in  an  action  by  a  broker  to  recover  compensation 
need  not  allege  the  date  on  which  defendant  failed  and  refused  to 
pay  the  agreed  compensation.  Eickmier  v.  Geddes,  126  N.  E. 
859,  —  Ind.  App.  — . 

Sec.  656e.    Parties  to  actions. 

In  an  action  by  brokers  for  commission  for  leasing  landlord's 
theater  to  tenant,  because  the  evidence  showed  brokers'  agent  was 
to  get  part  of  the  commission,  did  not  require  his  being  made  a 
party  plaintiff  since  he  was  not  a  partner.  Brady  v.  Richey  & 
Craig,  202  S.  W.  170,  —  Tex.  Civ.  App.  — . 

In  an  action  by  purchaser  who  had  entered  into  a  written  con- 
tract with  brokers  to  buy  property  at  a  certain  price  and  terms, 
to  recover  an  advanced  payment  to  brokers,  after  owner  had  de- 
clined to  convey  or  to  enter  into  a  contract  of  sale,  it  was  not 
necessary  to  make  the  owner  a  party  defendant.  Harwi  v.  Mor- 
ton, 186  P.  740,  —  Kan.  Sup.  — . 


CHAPTER  V. 


SECTION. 

657.  Interpleader,    when    allowed. 

658.  Interpleader,  when  not  entitled 

thereto. 

659.  Demurrer  lies  to  petition  against 

broker  for  failure  of  title, 
when. 

660.  Demurrer  lies  to  allegation  that 

defendant  neglected  to  collect 
rents. 

661.  Demurrer  lies  to  petition  where 

only  partial  copies  of  letters 
constituting  contract  are 
given. 

662.  Demurrer  sustained  where  plain- 

tiff sought  to  recover  for  loss 
of  commissions  from  opposite 
party. 


SECTION. 

663.  Demurrer  to  answer  liea  for  not 

showing  modification  of  writ- 
ten contract. 

664.  In   Nebraska  demurrer  lies   to 

petition  not  showing  agent's 
appointment  was  in  writing. 

665.  Demurrer  held  improperly  sus- 

tained in  action  to  recover 
commissions  paid  recreant 
agent. 

665a.  Demurrer  to  the  evidence  and 
general  demurrers. 

666.  Motion  to  dismiss  held  properly 

denied. 

667.  Amendment   to   set  up  uncon- 

scionable   demand    refused. 
667a.  Waiver  by  failure  to  object  to 
amended  answer. 


Sec.  657.    Interpleader,  when  allowed. 

Where  two  brokers  claim  the  commissions  for  the  same  sale 
of  land  an  interpleader  will  be  awarded  at  defendant's  in- 
stance. Dreyer  v.  Ranch,  3  Daly  (N.  Y.),  434,  42  How,  Pr. 
22;  Shipman  v.  Scott,  12  Civ.  Proc.  R.  18  (N.  Y.),  14  Daly,  233. 
Contra,  Brooke  v.  Smith,  13  Pa.  Cir.  Ct.  R.  557,  2  Pa.  Dist.  C. 
R.  767,  33  Weekly  Notes  Gas.  74.  In  an  action  by  a  real  es- 
tate broker  to  recover  commissions  on  a  sale  of  property,  de- 
fendant is  entitled  to  an  interpleader,  where  another  broker 
claims  commissions  for  the  sale  of  the  same  property  to  the 
same  purchaser  on  different  terms.  Shipman  v.  Scott,  14  Daly 
233  (N.  Y.). 

In  an  action  by  a  broker  to  recover  commissions  for  selling 
land,  it  appeared  that  the  vendor  had  paid  another  with  knowl- 
edge of  the  broker's  claim;  there  was  no  error  in  an  instruc- 
tion that  the  vendor  was  protected  by  the  law,  which  author- 

615 


616  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

ized  him  to  pay  the  money  into  court  and  compel  the  broker 
and  the  other  claimant  to  litigate  their  rights,  since  the  Code 
of  Civil  Procedure,  Section  820,  provides  that  a  defendant 
may,  where  a  person  not  a  party  to  the  action  makes  a  demand 
against  him  for  the  same  debt  or  property,  apply  for  an  order 
to  substitute  that  person  in  his  place,  and  to  discharge  him 
from  liability  to  either,  on  his  paying  into  court  the  amount 
of  his  debt.  Bickart  v.  Hoffman,  19  N.  Y.  S.  472. 

In  an  action  by  a  broker  for  commissions  on  a  sale  of  land, 
where  another  broker  claiming  the  same  commissions  is  sub- 
stituted as  defendant  for  the  principal,  he  having  paid  the 
commissions  into  court,  the  principal's  statement  to  one  of  the 
brokers,  in  the  other's  absence,  that  the  absent  broker  had  no 
authority  to  sell  the  land  with  a  builder's  loan,  is  properly 
excluded.  Shipman  v.  Freeh,  1  N.  Y.  S.  67. 

Sec.  658.    Interpleader,  when  not  entitled  thereto. 

In  an  action  by  a  broker  against  his  principal  for  a  commis- 
sion on  an  alleged  sale  of  land  made  by  plaintiff  for  defend- 
ant, the  latter  is  not  entitled  to  file  an  answer  in  the  nature 
of  a  bill  of  interpleader  by  alleging  that  another  broker  also 
claims  commissions  for  making  the  sale.  Hurtsook  v.  Chriss- 
man,  114  Mo.  App.  558,  90  S.  W.  116. 

A  bill  of  interpleader  will  not  lie  at  the  suit  of  the  seller 
to  require  two  real  estate  agents  to  interplead  as  to  which 
should  have  commissions  on  a  sale  of  land,  since,  if  either  of 
them  was  entitled  to  commissions,  it  is  because  of  some  con- 
tract he  had  with  the  seller,  and  not  because  of  anything  that 
has  happened  between  themselves.  Sachsel  v.  Farrar,  35  111. 
App.  277. 

Where  plaintiffs  sue  defendant  for  a  broker's  commissions  for 
the  sale  of  certain  land  made  through  their  agency,  the  action 
by  a  third  person  against  defendant,  in  another  suit,  to  recover 
for  work,  labor  and  services  in  the  sale  of  the  land,  is  not  a 
demand  against  him  for  the  same  debt  within  the  Code  of  Civil 
Procedure,  Section  820,  allowing  an  order  of  interpleader  when 
competent  creditors  demand  the  same  debt.  Taylor  v.  Satterth- 
waite,  22  N.  Y.  S.  187,  2  Misc.  441. 


PLEADINGS,   PRACTICE,   ETC.  (J17 

Sec.  659.    Demurrer  lies  to  petition  against  broker  for  fail- 
ure of  title  when. 

In  an  action  against  a  real  estate  agent  for  failure  to  ex- 
amine the  title  of  land  purchased  by  him  for  plaintiff,  the 
plaintiff  alleged  that  the  grantor  had  mortgaged  the  land  and 
other  land,  and  that  the  mortgage  had  been  foreclosed  and  the 
land  in  question  sold,  without  saying  whether  the  grantor  still 
retained  title  to  the  other  lands  mortgaged  or  their  value,  or 
that  plaintiff  applied  for  an  order,  in  the  decree  for  foreclos- 
ure, that  such  other  lands  be  first  sold,  is  demurrable.  Sears 
v.  Forbes,  122  Ind.  358,  23  N.  E.  773. 

Sec.  660.    Demurrer  lies  to  allegation  that  defendant  neg- 
lected to  collect  rents. 

In  an  action  against  an  agent  to  recover  for  rents  collected 
by  him,  and  for  damages  for  failure  to  collect  rents,  an  alle- 
gation that  defendant  has  '"  neglected  said  business,  and  hence 
has  failed  to  collect  rents  with  diligence  he  might  have  col- 
lected," is  insufficient  and  demurrable.  Peeler  v.  Lathrop,  48 
Fed.  780. 

Sec.  661.    Demurrer  lies  to  petition  where  only  partial  cop- 
ies of  letters  constituting  contract  are  given. 

Where  a  petition  sets  forth  letters  alleged  to  have  been  writ- 
ten by  the  parties,  and  to  have  created  the  necessary  written 
contract  between  the  owner  of  the  land  and  the  broker,  but 
does  not  purport  to  give  full  copies,  neither  is  there  any  alle- 
gation that  the  letters  were  signed,  the  petition  is  subject  to 
demurrer.  David  Bradley  v.  Bower  (Neb.  Sup.  '04),  99  N. 
W.  490. 

Sec.  662.    Demurrer  sustained  where  plaintiff  sought  to  re- 
cover for  loss  of  commissions  from  opposite  party. 

A  complaint  alleged  employment  by  defendant  as  broker  to 
exchange  real  estate,  the  offer  of  defendant's  property  under 
defendant's  instructions,  and  acceptance  of  such  offer,  the  noti- 
fication of  defendant  thereof,  and  that  defendant  refused  to 
proceed  with  the  exchange  and  claimed  the  reasonable  value 
of  such  services;  a  second  count  repeated  the  allegations  of 


618  AMERICAN  LAW  REAL  ESTATE  AGENCT. 

the  first,  and  claimed  damages  for  the  loss  of  commissions  to 
be  paid  by  the  owners  of  the  other  property  on  completion  of 
the  exchange.  Held,  that  the  only  contract  alleged  between 
defendant  and  its  broker  was  an  employment,  that  the  em- 
ployer contracted  to  pay  the  reasonable  value  of  his  services, 
and  a  demurrer  to  the  second  cause  of  action,  on  the  ground 
that  it  did  not  state  a  cause  of  action,  was  properly  sustained. 
Mulhall  v.  Bradley  &  Currier  Co.,  63  N.  Y.  S.  782,  50  A.  D.  179. 
See  also  Sec.  25. 

Sec.  663.    Demurrer  to  answer  lies  for  not  showing  modifica- 
tion of  written  contract. 

A  complaint  alleged  that  defendant  agreed  in  writing  to 
pay  plaintiff  $300  if  plaintiff  would  obtain  a  loan  of  $3,000, 
and  that  plaintiff  had  fully  performed;  the  answer  alleged 
that  defendant  informed  plaintiff:  that  defendant  must  have 
the  money  within  ten  days,  but  that  when  defendant  called  on 
the  parties  who  were  to  make  the  loan,  he  could  not  obtain 
the  money,  and  that  the  same  thing  occurred  several  times, 
and  that  the  negotiations  extended  over  much  more  than  ten 
days.  Held,  that  the  answer  was  demurrable  as  not  showing 
a  modification  of  the  written  contract,  and  in  that  it  did  not 
appear  when  the  limitation  began  to  run  and  when  it  terminated. 
Burr  v.  Pen  field,  105  N.  Y.  S.  939,  55  Misc.  543. 

Sec.  664.    In  Nebraska,  demurrer  lies  to  petition  not  showing 

agent's  appointment  was  in  writing. 

In  an  action  to  recover  compensation  for  services  rendered 
as  a  real  estate  broker,  a  petition  which  discloses  on  its  face 
that  the  contract  of  agency  was  not  in  writing  is  open  to  attack 
by  demurrer.  Smith  v.  Aultz,  78  Neb.  453,  110  N.  W.  1015. 

Sec.  665.    Demurrer  held  improperly  sustained  in  action  to 

recover  commissions  paid  recreant  agent. 
In  an  action  by  a  principal  against  his  agent  to  recover  in 
part  certain  commissions  alleged  to  have  been  erroneously  paid, 
where,  on  an  answer  and  counterclaim  for  the  balance,  the  orig- 
inal action  is  dismissed,  and  the  case  is  tried  on  the  counter- 
claim, and  the  evidence  of  plaintiff  shows  that  defendant, 


PLEADINGS,  PRACTICE,  ETC.  619 

while  his  agent  in  the  purchase  of  lands,  unknown  to  him  re- 
ceived a  commission  from  the  agent  of  the  vendor,  is  a  sufficient 
defense  to  the  action  on  the  counterclaim,  and  a  demurrer  to  such 
evidence  was  improperly  sustained.  Plottner  v.  Chillian  (Okla. 
Sup.  '08),  95  P.  775. 

Sec.  665a.    Demurrer  to  the  evidence  and  general  demurrers. 

In  an  action  for  compensation  for  attempting  to  procure  a 
loan,  inconsistency  in  plaintiffs  testimony;  held,  not  to  autho- 
rize sustaining  a  demurrer  to  the  evidence.  Little  v.  Liggett,  121 
P.  1125,  86  Kan.  747,  40  L.  K.  A.  (F.  S.)  39. 

Where,  in  a  real  estate  broker's  action  for  commission,  the  an- 
swer set  up  plaintiffs  fraud,  and  also  that  the  proposed  purchaser 
was  not  ready,  willinsr  and  able  to  carry  out  the  agreement,  and 
there  was  some  evidence  to  sustain  the  defense  of  fraud,  it  was 
error  to  sustain  demurrer  to  defendant's  evidence,  though  there 
was  no  evidence  to  support  the  other  defense.  Avery  v.  Howell, 
153  P.  532,  96  Kan.  657. 

In  a  suit  for  commission  alleged  to  be  due  under  the  terms  of 
a  contract  for  procuring  a  purchaser  of  land,  a  petition  failing  to 
show  that  broker  produced  a  purchaser  ready,  able  and  willing  to 
buy  on  terms  proposed  by  owner,  as  required  by  Civ.  Code  1910, 
sec.  3587,  was  properly  dismissed  on  a  general  demurrer.  Mont- 
gomery v.  Lester,  104  S.  E.  28,  —  Ga.  App.  — . 

Even  if  a  contract  for  obtaining  a  tenant  contemplated  one 
with  financial  ability  to  perform  the  lease,  the  complaint  for  per- 
forming the  service,  alleging  the  securing  of  a  tenant  "able," 
ready  and  willing  to  "execute"  a  lease,  can  be  sustained  against 
demurrer  as  in  fact  alleging  one  ready,  willing  and  "financially" 
able  to  "perform"  the  lease.  Harritz  v.  Steers,  185  N.  Y.  Sup. 
704. 

In  an  action  by  a  broker  for  compensation  in  negotiating  a 
sale  which  was  never  completed,  evidence  held  sufficient  to  war- 
rant the  court  in  overruling  defendant's  demurrer  thereto.  North 
Ave.  Casino  Co.  of  Balti.  City  v.  Ferguson,  100  A.  628,  130  Md. 
376. 


620  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

Sec.  666.    Motion  to  dismiss  held  properly  denied. 

In  an  action  by  a  real  estate  broker,  the  complaint  was  made 
to  set  forth  two  causes  of  action;  the  first  alleged  that  the  con- 
tract between  the  parties  provided  for  a  commission  for  leasing 
and  a  commission  for  selling  the  property  in  question,  and  the 
fact  of  a  lease  procured  through  plaintiff;  while  the  second  merely 
alleged  that  the  tenant  thus  procured  also  took  and  subsequently 
exercised  an  option  to  buy.  Held,  that  as  all  the  allegations 
might  be  taken  together  as  stating  only  one  cause  of  action  for 
two  commissions,  the  motion  to  dismiss  the  second  cause  of  ac- 
tion was  properly  denied.  Downey  v.  Turner,  51  N.  Y.  S.  105, 
28  App.  Div.  491 ;  House  v.  Boyd,  91  S.  E.  603,  —  N.  C.  Sup.  — . 

Sec.  666a.    Motion  which  should  have  been  granted. 

Where  a  broker,  suing  for  a  commission  for  effecting  a  sale  of 
defendant's  farm  containing  about  125  acres,  proves  only  a  con- 
tract to  find  a  certain  other  purchaser  for  100  acres  thereof,  de- 
fendant's motion  for  a  peremptory  instruction  should  have  been 
granted.  Smith  v.  Robinson,  214  S.  W.  771,  —  Ky.  Ct.  App.  — . 

Sec.  667.    Amendment  to  set  up  unconscionable  demand  re- 
fused. 

In  an  action  to  recover  $4,000,  the  residue  of  $7,600  brokerage 
for  negotiating  a  loan  of  $4,000  for  four  months,  the  evidence 
did  not  support  the  allegations  of  the  complaint,  and  the  plaintiff 
was  non-suited.  Held,  that  it  was  immaterial  that  defendant  did 
not  specify  for  his  motion  a  non-suit,  as  the  complaint  could  not 
be  corrected  except  by  amendment,  and  that  could  not  be  granted 
because  the  demand  was  unconscionable.  Daley  v.  Russ,  86  Cal. 
114,  24  P.  867. 

Sec.    667a.      Waiver  by  failure  to  object  to  amended  answer. 

If  a  party  fails  to  object  to  the  granting  of  general  leave  to 
amend,  he  can  not  subsequently  have  the  amendment  stricken 
out  because  setting  up  an  unconscionable  defense.  State  v.  Rod- 
ney, 1  Houst.  (Del.),  442;  Duncan  v.  Cravens,  55  Ind.  525. 


CHAPTER  VI. 

SECTION.  SECTION. 

668.  Amendment  proper  to  allow       671.     Amendment,  error  to  allow 

to    plead    general    denial  to  allege  exercise  of  op- 

where  answer  set  up  stat-  tion    and    completion    of 

ute  of  frauds.  sale. 

669.  Amendment     allowing     cor-  672.     Amendment  to  answer  held 

rection    of    written   con-  improper  and  misleading, 

tract  does  not  cause  a  de-  673.     Amendment  of  complaint,  at 

parture.  trial,    in    furtherance    of 

670.  Amendment,  when  error   to  justice,  held  proper. 

refuse.  674.     Amendment  properly  allowed 

plaintiff  to   claim   return 
of  commissions  for  fraud. 

Sec.  668.  Amendment,  proper  to  allow  to  plead  general  de- 
nial, where  answer  set  up  statute  of  frauds. 
Where  the  answer  alleged  that  the  contract  of  employment 
was  oral,  and  "barred  and  invalid  by  the  provisions"  of  a 
statute  declaring  that  "contracts  for  the  employment  of  an 
agent  to  sell  real  estate  for  commissions  are  invalid  unless  in 
writing  subscribed  by  the  party  to  be  charged,"  and  plaintiffs 
have  failed  to  show  a  written  contract  of  employment,  it  was 
not  error  to  permit  defendant  to  amend  his  answer  by  chang- 
ing the  admission  of  the  contract  of  employment  into  a  denial 
of  the  same.  Jamison  v.  Hyde,  141  Cal.  109,  74  P.  695.  But 
see  StrunsJci  v.  Geiger,  101  N.  Y.  S.  786,  52  Misc.  134.  Sec.  699. 

Sec.   669.    Amendment  allowing  correction  of  written  con- 
tract does  not  cause  a  departure. 

Where  the  identity  of  the  transaction  on  which  plaintiffs 
based  their  claim  to  a  judgment  against  the  defendant  and 
the  form  of  the  action  as  one  sounding  in  contract  were  pre- 
served in  the  amended  petition,  and  this  is  the  best  and  most 
reasonable  test  by  which  to  determine  whether  or  not  an  amend- 

621 


622  AMEKICAN  LAW    EEAL   ESTATE  AGENCY. 

ment  of  a  pleading  substantially  changes  the  cause  of  action 
so  as  to  be  obnoxious  to  the  rule  against  departure,  the 
amendment  of  the  written  contract  does  not  constitute  a  de- 
parture. Steivart  v.  Van  Home,  91  Mo.  App.  647;  Sain  v. 
Booney,  125  Mo.  App.  176,  101  S.  W.  1127. 

Sec.  670.    Amendment,  when  error  to  refuse. 

Where  the  court  voluntarily  permits  a  broker  suing  for  com- 
missions to  amend  his  complaint  to  show  an  assignment  to  him 
of  a  claim  for  commissions  by  A.,  it  is  error  to  refuse  to  allow 
him  to  amend  for  the  purpose  of  showing  an  assignment  of  a 
portion  of  the  claim  from  B.,  although  the  fact  of  such  as- 
signment appears  in  plaintiff's  bill  of  particulars.  Schlesinger 
v.  Jud,  70  N.  Y.  S.  616,  61  App.  Div.  453. 

Sec.  671.    Amendment,  error  to  allow  to  allege  exercise  of  op- 
tion and  completion  of  sale. 

"Where,  in  an  action  for  commissions  for  a  broker's  services 
in  the  sale  of  a  mine,  a  non-suit  was  granted,  by  reason  of  the 
fact  that  the  option  to  purchase,  negotiated  by  the  broker, 
had  not  matured  when  suit  was  brought,  and,  pending  a  mo- 
tion for  a  new  trial  for  alleged  errors  of  law  occurring  at  the 
trial,  the  purchaser  complied  with  the  option  and  completed 
the  sale,  it  Avas  error  to  grant  a  subsequent  application  for 
a  new  trial,  in  order  to  permit  the  broker  to  allege  by  amend- 
ment the  completion  of  the  sale  and  recover  for  his  services. 
Lawrence  v.  Peterson,  34  Wash.  1,  74  P.  1011. 

Sec.  672.    Amendment  to  answer  held  improper  and  mislead- 
ing. 

On  the  trial  of  a  cause  the  defendant  obtained  leave  to  amend 
his  answer  by  alleging  "that  after  making  the  sales  named 
they  (plaintiffs)  complained  that  the  prices  were  too  high 
as  named  by  defendant,  and  made  no  effort  to  sell  the  same, 
but  neglected  the  same,  to  the  defendant's  damage  and  in- 
jury." Held,  that  the  matter  involved  in  the  amendment, 
not  being  pertinent  to  the  case,  was  calculated  to  raise  a  false 
issue  and  distract  the  attention  of  the  jury  from  the  real  ques- 
tion«  for  their  determination.  Marshall  v.  Goble,  32  Neb.  9,  48 
N.  W.  898. 


PLEADINGS,  PRACTICE,  ETC.  623 

Sec.  673.    Amendment  of  complaint   at  trial,  in  furtherance 
of  justice,  held  proper. 

In  an  action  for  a  division  of  broker's  commissions,  it  was 
proper  to  permit  plaintiff  to  amend  his  complaint  at  the  trial 
by  inserting  an  allegation  that  defendant  was  the  agent  of 
a  certain  corporation,  within  certain  years  covering  the  trans- 
action in  question,  which  was  the  owner  of  the  property  sold, 
under  the  statute  authorizing  the  court  to  permit  the  amend- 
ment of  pleadings  in  the  furtherance  of  justice.  McCleary  v. 
Willis,  35  Wash.  676,  77  P.  1073. 

In  an  action  by  a  broker  to  recover  compensation  for  the  sale 
of  a  real  estate  option,  the  court  will  permit  plaintiff  to  amend  his 
declaration  at  the  trial  by  inserting  a  clause  that  the  contract 
(which  was  not  reduced  to  writing)  provided  that  defendant 
should  pay  plaintiff  for  obtaining  a  purchaser  $5,000  in  any 
event.  0.  W.  Kerr  Co.  v.  Corry,  211  F.  647,  128  C.  C.  A.  151. 

Sec.  674.    Amendment  properly  allowed  plaintiff  to  claim  re- 
turn of  commissions  for  fraud. 

In  their  original  petition  plaintiffs  alleged  that  defendants 
engaged  to  sell  plaintiffs'  land  at  $4,000,  for  a  commission  of 
$125,  but  if  only  $3,900  could  be  obtained  the  commission  should 
be  $100;  the  land  sold  for  $4,000,  but  defendants  fraudulently 
represented  that  only  $3,900  was  obtained;  that  plaintiffs  paid 
defendants  a  commission  of  $100,  and  that  they  fraudulently 
converted  $100  of  the  price  paid  for  the  land,  and  asked  judg- 
ment for  $75;  later,  plaintiffs  were  permitted  to  amend  their 
petition  by  alleging  that  defendants  through  their  fraud  for- 
feited all  right  to  commissions,  and  asked  for  recovery  of  com- 
missions paid  and  the  remainder  paid.  Held,  that  the  amend- 
ment was  properly  allowed.  Deter  v.  Jackson,  76  Kan.  768, 
92  P.  546. 


CHAPTER  VII. 
DEFENSES. 

Sec.  675.    That  broker  did  not  use  best  efforts  insufficient. 

An  answer  does  not  state  a  defense  which  admits  the  con- 
tract, and  alleges  that  the  broker  did  not  use  his  best  efforts 
and  act  in  good  faith,  but  fraudulently  induced  the  defendant 
to  agree  to  an  exchange  which  he  knew  was  not  worth  as  much 
as  defendant's  property,  is  insufficient,  where  no  direct  aver- 
ment of  facts  showing  fraud  is  made.  Rabb  v.  Johnson,  28  Ind. 
App.  665,  63  N.  E.  580;  Meyer  v.  Payne,  43  N.  Y.  S.  133,  13 
N.  Y.  App.  Div.  332. 

Sec.  676.  Setting  up  violation  of  law  as  to  license  insufficient. 
An  answer  setting  up  the  violation  of  a  foreign  statute  re- 
quiring brokers  to  take  out  a  license  was  held  insufficient  to 
show  that  the  petition  was  founded  on  a  criminal  offense,  or 
that  the  broker's  contract  was  void  or  prohibited  by  statute, 
averments  to  that  effect  being  held  mere  incidents  and  deduc- 
tions from  the  statute,  and  not  allegations  of  facts.  Angell  v. 
Van  ScUnck,  9  N.  Y.  S.  568,  56  Hun,  247;  Gibbons  v.  Williams, 
Moniser  &  Co.,  191  111.  App.  594;  Linton  v.  Johnson,  94  S.  E. 
945,  —  W.  Va.  Sup.  — .  Nor  can  an  agent  sued  for  an  ac- 
counting set  up  the  illegality  of  transaction  from  which  the 
money  was  realized.  Mechem  on  Ag.,  Sec.  526. 

Sec.  677.    Affirmative  defense  not  pleaded  can  not  be  proved. 

An  affirmative  defense  to  be  proved  must  be  pleaded.  Kelly  v. 
Stone,  94  Iowa,  316,  62  N".  W.  842;  Scott  v.  Dillon,  109  N.  Y.  S. 
877,  58  Misc.  522 ;  Mauser  v.  Hurdle,  140  P.  479,  27  Colo.  App 
567;  Langston  v.  Hoyt,  194  P.  654,  —  Kan.  Sup.  — . 

Sec.  678.    Defense  that  plaintiff  also  acted  for  customer,  to 
be  proved,  must  be  pleaded. 

The  defense  that  plaintiff  was  employed  by  both  parties  and 
his   double   employment   not   disclosed   must,   to   be   proved,    be 
624 


PLEADINGS,  PRACTICE,  ETC.  625 

pleaded.  Childs  v.  Ptorney,  17  Mont.  502,  43  P.  714;  Reese  v. 
Garth,  36  Mo.  App.  641;  Harrell  v.  Bonfils  Imp.  Co.,  45  N.  Y. 
S.  227,  17  A.  D.  405;  Marks  v.  O'Donnell,  121  N.  Y.  S.  214. 
Compare  Sec.  869. 

Sec.  679.    Denying  agreement  will  not  admit  proof  of  double 
employment. 

Under  a  denial  of  an  agreement  for  the  payment  of  a  com- 
mission, the  broker's  double  employment  can  not  be  proved.  Mc- 
Fee  v.  Horan,  40  Minn.  30,  41  N.  W.  239;  Smith  v.  Soosan,  35 
N.  Y.  S.  806,  24  Misc.  706;  Annabil  v.  Traverse  Land  Co. 
(Minn.  Sup.  '09),  121  N.  W.  233;  Hoffhines  v.  Thorson,  141  P. 
253,  92  Kan.  605. 

The  defense  of  double  agency,  in  an  action  for  a  commission, 
on  an  exchange  of  land,  must  be  affirmatively  pleaded.     North- 
west Land  &  Col  Co.  v.  Addington,  168  P.  164,  98  Wash.  576. 

Sec.  680.    Denying  allegations,  except  that  plaintiff  is  a  bro- 
ker, admits  proof  of  double  employment. 

This  defense,  double  employment,  may  be  proved  under  a  de- 
nial of  all  the  allegations  of  the  complaint  except  that  plaintiff 
was  a  broker.  Wolf  v.  Demboskey,  74  N.  Y.  S.  465,  36  Misc. 
643,  66  A.  D.  428;  Nichols  v.  Greenstreet,  130  N.  Y.  Sup.  843, 
71  Misc.  Rep.  196,  judg.  aff.  131  N.  Y.  Sup.  1131,  140  App.  div., 
940 ;  Biggins  v.  Pottman,  174  P.  119,  —  Cal.  App.  — . 

Sec.  681.    Denying  performance  of  services  by  broker  admit* 

proof  of  double  employment. 

Under  an  answer  merely  denying  the  performance  of  the 
services  by  the  broker  his  double  employment  may  be  proved. 
Norman  v.  Reuther,  54  N.  Y.  S.  152,  25  Misc.  161. 

Sec.  682.    That  services  were  rendered  under  an  express  con- 

tract  inadmissible  under  general  denial. 

In  an  action  to  recover  the  reasonable  value  of  services  for 
procuring  a  purchaser  of  land,  a  defense  that  the  services  were 
rendered  under  an  express  contract  as  to  compensation  is  in- 
admissible under  the  general  denial,  the  action  being  to  recover 


626  AMERICAN   LAW    REAL   ESTATE   AGENCY. 

upon  a  quantum  meruit;  if  defendant  relied  upon  an  express 
contract  in  respect  to  plaintiff's  corporation,  he  should  have 
pleaded  it.  Reishus-Remer  Co.  v.  Benner,  91  Minn.  401,  98 
N.  W.  186.  Compare  Sec.  696. 

Sec.  683.     Under  general  denial  can  not  prove  transaction  can- 
celled by  consent  of  all. 

In  an  action  brought  by  real  estate  brokers  for  commissions, 
the  defendant  cannot  under  a  general  denial  be  permitted 
to  show  that  subsequent  to  the  procurement  of  the  customer 
and  the  execution  by  him  of  a  written  agreement  to  purchase, 
the  entire  transaction  including  the  agreement  to  purchase  was 
cancelled  by  consent  of  all  parties.  Rothschild  v.  Barrett,  47 
Minn.  28,  49  N.  W.  393. 

Sec.  684.    Under  a  general  denial  may  show  no  commissions 
chargeable  unless  excess  in  price  received. 

In  an  action  by  a  broker  for  commissions  for  selling  land 
under  an  alleged  contract  providing  for  a  specified  sum  as  com- 
missions, defendant  may  under  a  plea  of  general  denial  show 
that  plaintiff  agreed  to  charge  no  commissions  unless  the  land 
was  sold  for  more  than  a  stated  price,  since  that  is  not  affirma- 
tive matter  of  defense.  Wein  v.  Gilmer,  81  Tex.  345,  16  S. 
W.  1058. 

Sec.  684a.    Defense  that  contract  had  been  rescinded  admissi- 
ble, though  not  specially  pleaded. 

In  an  action  by  a  broker  for  compensation,  defense  that  the 
contract  between  the  broker  and  defendant  had  been  rescinded 
held  admissible,  though  not  specially  pleaded.  Mott  v.  Minor, 
(Cal.  App.  '09),  106  P.  244. 

Sec.  684b.    Defense  that  broker  had  not  secured  second  loan 
admissible  under  general  denial. 

In  an  action  for  commissions  for  procuring  a  mortgage  loan, 
a  defense  that  the  broker  had  not  procured  a  second  loan  agreed 
upon  is  admissible  under  the  general  denial.  Bowes  v.  Christian, 
110  N.  E.  1034,  222  Mass.  359. 


PLEADINGS,  PRACTICE,  ETC.  627 

Sec.  684c.    Revocation  an  affirmative  defense. 

Under  Pub.  Acts  1915,  #90,  Sec.  2,  requiring  answer  to  con- 
tain either  denials  of  complainant's  allegations  or  statement  of 
facts  relied  upon  in  defense,  the  revocation  of  a  broker's  contract 
for  commission  is  an  affirmative  defense,  which  should  be  spe- 
cially set  up  in  defendant  principal's  answer.  Bradley  v.  Blandin, 
100  A  920,  91  Vt.  472. 

Sec.  685.    Under  a  general  denial  can  not  prove  another  than 

plaintiff  introduced  the  purchaser. 

In  an  action  by  a  real  estate  broker  for  commissions,  where 
the  answer  is  a  general  denial,  the  proof  is  restricted  to  sus- 
taining or  controverting  the  facts  stated  in  the  petition,  and 
defendant  cannot  show  that  a  third  party  and  not  the  plaintiff 
introduced  the  purchaser  to  the  defendant.  St.  Felix  v.  Green, 
34  Neb.  800,  52  N.  W.  821 ;  Reese  v.  Garth,  36  Mo.  App.  641. 

Sec.  686.    Plaintiff  is  not  bound  to  negative  defense  of  aban- 
donment of  employment. 

In  an  action  for  a  broker's  commissions,  an  alleged  aban- 
donment of  the  broker's  employment  to  sell  is  matter  of  defense 
which  the  plaintiff  is  not  bound  to  negative.  Moore  v.  Boehm, 
91  N.  Y.  S.  125,  45  Misc.  622;  Jackson  v.  Brower,  167  P.  6,  22 
N.  M.  615. 

Sec.  687.    That  owner  offered  to  perfect  title  by  suit  at  law  no 
defense  to  action  by  broker  for  commissions. 

The  fact  that  the  owner  offered  the  prospective  purchaser 
to  perfect  his  title  by  suit  at  law  is  no  defense  to  an  action  for 
commissions.  Bruce  v.  Wolfe,  .102  Mo.  App.  384,  76  S.  W.  723. 

Sec.  687a.    Sale  by  owner  at  higher  price  no  defense  to  broker's 

suit  for  commissions  for  producing  a  buyer. 

Where  plaintiff  was  employed  by  an  executor  to  sell  land  of 

the  estate,  and  plaintiff  procured  a  purchaser  in  accordance 

with  the  required  terms,  the  fact  that  the  property  was  sold 

to  another  offering  a  higher  price  was  no  defense  to  plaintiff's 


628  AMERICAN   LAW    EEAL   ESTATE   AGENCY. 

right  for  commissions.     Hickman-Coleman  Co.  v.  Leggett   (Cal. 
App.  '09),  100  P.  1072.    Compare  Sees.  15,  454. 

Sec.  687b.    No  defense  to  action  for  commission  for  finding  a 
purchaser  that  latter  might  have  declined  to  perform. 

In  an  action  by  a  broker  against  the  president  of  a  corpora- 
tion, who  employed  plaintiff  without  authority,  for  furnishing 
one  ready,  able  and  willing  to  purchase  land  from  the  corpora- 
tion, it  was  no  defense  that  the  contract  or  agreement  which  was 
entered  into  between  the  prospective  purchaser  and  the  defendant 
was  unilateral,  and  that  the  prospective  purchaser  might  have 
declined  to  perform,  where  it  was  clearly  shown  that  the  pros- 
pective purchaser  was  anxious  to  perform,  and  would  have  done 
so  except  for  the  refusal  of  the  corporation  to  approve  the  con- 
tract or  to  convey.  Mueller  v.  Nugent,  218  S.  W.  780,  —  Ky. 
Ct.  App.  — . 

Sec.  688.    When  sued  for  commissions  can  not  set  up  defect 
which  stated  at  the  time  might  have  been  cured. 

Where  one  who  employed  a  broker  to  purchase  for  him  land 
at  a  specified  price,  absolutely  refused  to  complete  the  transac- 
tion, he  cannot,  at  the  trial  of  the  broker's  action  for  commis- 
sions, set  up  a  defect  in  the  title  which  if  expressed  at  the 
time,  might  have  been  obviated.  Auten  v.  Jacobus,  47  N.  Y. 
S.  1119,  21  Misc.  632,  affirming  46  N.  Y.  S.  681,  20  Misc.  669. 

Sec.  689.  Defendant  can  show  another  agent  made  the  sale. 
In  an  action  to  recover  commissions  for  a  sale  of  real  estate, 
defendant  can  show  that  another  authorized  agent  made  the  sale. 
Gain  v.  Hess,  102  Iowa  140,  71  N.  W.  218;  Cook  v.  Whiting, 
'(Iowa  Sup.  '09),  122  N.  W.  835;  Russell  v.  Poor  (Mo.  App. 
'08),  115  S.  W.  1. 

Sec.  689a.    What  purchaser  may  show  in  defense  of  action  to 
dispossess. 

Where  the  agent  having  authority  to  sell  lands  for  his  prin- 
cipal makes  a  contract  in  writing  for  a  sale  of  the  same  in 
his  own  name  and  puts  the  purchaser  in  possession  thereof,  who 


PLEADINGS,  PRACTICE,  ETC.  629 

makes  thereon  lasting  and  valuable  improvements,  and  the 
purchaser  is  afterward  sued  by  the  principal  for  the  recovery 
of  the  land,  the  purchaser  may,  with  proper  allegations  in  his 
answer,  show  the  intention  of  the  parties  to  have  been  that  the 
principal  should  be  bound  by  the  contract.  Butler  v.  Kaulback, 
8  Kan.  668.  Compare  Taylor  v.  Guest,  45  How.  Pr.  (K  Y.)  276. 

Sec.  689b.    Not  a  defense  to  action  for  commission  that  plain- 
tiff's partner  was  entitled  to  half. 

In  an  action  for  a  real  estate  broker's  commission,  it  was  no 
defense  that  plaintiff  had  a  partner  and  was  entitled  to  but  one- 
half  of  the  commission,  where  no  attempt  was  made  to  make  the 
co-partner  a  party.  Austin  v.  Norris,  141  S.  W.  1179,  101  Ark. 
180. 

Sec.  690.    That  authority  was  conditional  on  defendant's  abil- 
ity to  buy  another  lot. 

In  an  action  by  a  real  estate  agent  for  commissions  for  a 
sale  of  land,  the  defense  was  that  the  authority  to  sell  was 
conditioned  on  defendant's  being  able  to  purchase  a  certain 
other  lot.  Held,  That  it  was  competent  for  defendant  to  show 
that  he  made  reasonable  effort  to  make  such  purchase,  as 
such  proof  showed  his  good  faith.  "Wilson  v.  Klein,  90  Ala.  518, 
8  S.  130. 

Sec.  691.    That  contract  obtained  was  provisional  and  no  lease 
was  made. 

Plaintiffs,  real  estate  agents,  were  to  receive  certain  com- 
missions for  services  in  securing  a  lessee  for  defendant  upon 
agreed  terms,  and  they  procured  an  informal  agreement  for 
a  lease  to  be  signed  by  defendant  and  the  applicant  for  the 
lease.  Held,  That  to  defeat  an  action  by  plaintiff  for  commissions 
defendant  might  show  by  parol  that  the  contract  was  merely 
provisional,  and  did  not  express  all  the  terms  of  the  lease  to 
be  entered  into  by  the  parties,  and  that  the  lease  was  never 
consummated,  because  no  final  agreement  was  ever  made  be- 
tween the  defendant  and  the  proposed  lessee.  Buxton  v.  Seal, 
49  Minn.  230,  51  N.  W.  918 ;  Laws  v.  Schmidt,  80  Ohio  St.  108, 
88  N.  E.  319. 


630  AMERICAN  LAW   EEAL   ESTATE  AGENCY. 

Sec.  691a.    Defendant,  under  a  general  denial,  may  show  that 
contract  was  merely  an  option. 

Defendant,  under  his  general  denial,  in  an  action  for  broker's 
commissions,  in  which  the  complaint  avers  that  plaintiffs  pro- 
cured R.  to  purchase  the  premises  of  defendant  for  an  agreed 
amount,  and  that  said  contract  was  reduced  to  writing  signed 
by  defendant,  may  show  that  the  contract  made  by  defendant 
and  R.  was  merely  an  option.  Brown  v.  Wisner  (Wash.  Sup. 
'09),  99  P.  581. 

Sec.  691  b.    Evidence  showing  contract  an  option  and  not  a  sale. 

The  rule  excluding  parol  evidence  to  vary  a  written  contract 
obtains  only  between  the  parties  thereto,  or  their  successors 
in  interest,  so  that  defendant,  in  an  action  for  a  broker's  com- 
missions for  procuring  a  purchaser  by  R  of  land  from  de- 
fendant, may  show  that  the  contract  between  R.  and  defendant, 
even  though  in  form  one  of  sale,  was  merely  an  option  and 
not  acted  on  by  R.  Brown  v.  Wisner,  51  Wash.  509,  99  P.  581. 

Sec.  692.    That  defendant  sold  premises  before  sale  by  plaintiff 
inadmissible  under  a  general  denial. 

Where  the  answer  is  a  general  denial,  the  issue  presented  by 
the  pleading  is  the  truth  of  the  allegations  of  the  petition ;  under 
such  an  issue  affirmative  proof  in  favor  of  the  defendant  cannot 
be  received,  and  an  instruction  submitting  such  proof  to  the 
jury  is  erroneous;  hence,  evidence  offered  by  defendant  that 
he  sold  the  premises  to  other  parties  before  the  sale  by  plaintiff 
is  inadmissible.  Griffith  v.  Woolworth,  44  N.  W.  1137,  28 
Neb.  715. 

Sec.  692a.     Owner  rendering  himself  unable  to  perform  no 
defense  to  broker's  action  for  commission. 

Where  a  contract  employing  plaintiff,  the  agent  of  defendant, 
to  sell  certain  lands,  provided  that  plaintiff  should  be  entitled  to 
a  commission  whether  the  property  was  sold  by  himself  or  an- 
other, the  fact  that  defendant  renders  himself  unable  to  perform 
the  contract  is  no  defense  to  an  action  for  a  commission.  Van 
Patten  v.  Taber,  130  N.  Y.  Sup.  1055,  71  Misc.  Rep.  610. 


PLEADINGS,  PRACTICE,  ETC.  631 

Owner  cannot  defeat  an  action  for  a  broker's  commission  by 
the  claim  that  the  contract  with  the  prospective  purchaser  was 
unsatisfactory,  where  his  only  excuse  for  not  accepting  it  was 
that  he  had  already  sold  to  another.  Paulsen  v.  Eourke,  145  P. 
711,  26  Colo.  App.  488. 

Sec.  693.    Defense  of  collusion  with  proposed  purchaser  and 

bad  faith  allowable. 

In  an  action  for  broker's  services,  an  answer  alleging  that 
the  proposed  purchaser  was  plaintiff's  uncle,  and  that  they 
entered  into  collusion,  whereby  the  uncle  was  to  pretend  to 
defendant  that  he  was  ready  and  willing  to  purchase  the  land 
and  pay  for  the  same  in  cash,  and  that  defendant  under  the 
belief  that  the  proposed  purchaser  was  acting  in  good  faith 
fixed  a  day  and  place  for  the  execution  of  the  deed,  when 
plaintiff  and  his  uncle  questioned  the  description  for  the  pur- 
pose of  delay,  and  that  before  the  adjourned -day  fixed  for  the 
execution  of  the  deed,  defendant  was  informed  that  the  pro- 
posed purchaser  would  not  take  the  land,  until  he  had  had  an 
opportunity  of  reinspecting  it,  which  he  never  did,  stated  a 
sufficient  defense.  McAfee  v.  Bending,  36  Ind.  App.  628,  76 
N.  E.  412. 

Sec.   693a.    Defense  of  fraudulent  representations  of  agent 

available  against  his  assignee. 

It  is  a  good  defense  for  procuring  a  contract  for  defendant 
that  the  services  were  rendered  without  any  effort  or  influence 
of  plaintiff's  assignor,  and  that  the  agreement  relied  on  by 
plaintiff  was  induced  by  his  assignor's  fraudulent  representa- 
tions. Sand  v.  Kenny  Mfg.  Co.,  113  N.  Y.  S.  972. 

Sec.  693b.    Voluntary  payment  by  the  defrauded  party  no 
defense  to  agent  sued  for  the  deceit  and  fraud. 

The  voluntary  payment  of  the  balance  of  the  price  of  the 
mine  bought  by  his  agent,  after  the  purchaser  entered  into 
and  partly  executed  the  contract  to  buy  the  property,  is  no 
defense  to  the  agent  sued  for  deceit  and  fraud  in  the  trans- 
action. Gt.  Western  Gold  Co.  v.  Chambers  (Cal.  Sup.  '09), 
101  P.  6. 


632  AMERICAN  LAW    REAL   ESTATE  AGENCY. 

Sec.  694.  After  contract  accepted  by  vendor  latter  can  not 
plead  irresponsibility  of  purchaser  to  action  by  broker  for 
fees. 

Where  a  broker,  under  a  general  contract  of  employment  to 
sell  real  estate,  obtained  a  purchaser  satisfactory  to  his  principal 
who  made  an  enforceable  contract  of  sale,  without  being  induced 
so  to  do  by  any  representations  of  the  broker  as  to  the  pur- 
chaser's responsibility,  and  without  any  bad  faith  on  the 
broker's  part,  the  latter  was  entitled  to  commissions,  though, 
without  the  principal's  fault,  the  vendee  failed  to  perform  the, 
contract  of  sale,  because  of  the  lack  of  sufficient  financial  respon- 
sibility at  the  time  the  contract  was  executed.  Alt  v.  Doscher, 
186  N.  Y.  566,  79  N.  E.  HOO;  J.  B.  WatJcin's  Ld.  Mfg.  Co.  v. 
Thetford  (Tex.  Civ.  App.  '06),  96  S.  W.  72;  Sanderson  v.  Wells- 
ford  (Tex.  Civ.  App.  '09),  116  S.  W.  382.  Contra,  Dotson  v. 
Milliken,  27  App.  (D.  C.),  500;  Ga.  Iron  &  Coal  Co.  v.  Rogers, 
Brown  &  Co.,  77  S.  E.  213,  12  Ga.  App.  429.  See  also  Sees.  726, 
842. 

Sec.  694a.  Proofs  available  to  defendant  under  his  denial  that 
customer  was  able  to  exchange. 

In  an  action  by  brokers  for  services  in  negotiating  an  exchange 
of  real  property,  which  was  not  carried  out,  even  if  plaintiffs 
made  prima  facie  proof  of  title  in  the  customer  offered  by  them, 
defendant  under  his  denial  that  the  customer  was  able  to  ex- 
change, could  prove  that  he  was  not  able,  because  he  had  no  title 
to  part  of  the  real  property  proposed  to  be  exchanged,  and  that 
it  was  incumbered  by  a  party-wall  which  made  it  unmarketable. 
Mutchnick  v.  Davis,  114  N".  Y.  S.  997. 

Sec.  694b.  Denial  of  purchaser's  financial  ability  not  an  ex- 
cuse for  owner's  failure  to  pay  broker's  commission. 

The  contention  that  plaintiff  did  not  procure  a  purchaser 
ready,  willing  and  able  to  pay  on  the  terms  agreed  upon;  held, 
not  to  excuse  defendant  owner  from  completing  the  sale,  where 
neither  plaintiff  nor  the  purchaser  insisted  on  the  terms  to  which 
defendant  objected.  Putnam  Inv.  Co.  v.  King,  150  P.  559,  96 
Kan.  109. 


PLEADINGS,  PRACTICE,  ETC.  633 

Sec.  695.    Answer  averring  willingness  to  sell  on  terms  set 

forth  states  no  defense. 

In  an  action  to  recover  an  agent's  commissions  for  finding 
a  purchaser  of  real  estate,  where  the  plaintiff  alleged  that 
defendant  had  agreed  to  pay  a  certain  sum  for  the  finding  of 
a  purchaser  at  $100  per  acre,  and  that  plaintiff  found  such 
purchaser,  who  offered  to  purchase  and  pay  for  the  land  either 
in  cash  or  on  such  terms  as  the  defendant  might  desire  as  to 
payment,  an  answer  denying  that  defendant  ever  employed 
plaintiff,  but  averring  a  willingness  to  sell  and  convey  to  the 
alleged  purchaser  at  $300  per  acre,  payable  in  five  equal  install- 
ments, bearing  interest  at  ten  per  cent,  per  annum  until  paid, 
principal  and  interest  to  constitute  part  of  the  purchase  price 
of  the  land,  constitutes  no  defense  to  the  action,  the  allegation 
in  the  complaint  that  the  purchaser  offered  such  terms  as  the 
defendant  might  desire  as  to  payment  being  mere  surplusage. 
Guthrie  v.  Bright,  26  Ky.  L.  R.  1021,  82  S.  W.  985. 

Sec.  695a.    It  is  no  defense  that  the  broker  agreed  to  divide 
his  commissions  with  third  persons. 

It  is  no  defense  to  an  action  for  commissions  on  a  sale  of 
land  that  the  broker  agreed  with  third  persons  that  they  should 
all  endeavor  to  make  a  sale,  and  would  divide  the  commissions 
in  the  event  thereof.  Ross  v.  Carr,  (N.  M.  Sup.  '09),  103  P.  307. 
Compare  Sec.  922. 

Sec.  695b.    No  defense  to  action  for  commission  that  broker 
did  not  give  owner  the  name  of  purchaser. 

That  a  broker  did  not  notify  owner  of  the  name  of  the  pros- 
pective purchaser;  held,  no  defense  to  an  action  for  a  commission. 
Reich  v.  Workman,  161  S.  W.  180,  110  Ark.  140. 

Sec.  695c.    Broker  sued  for  fraud  in  effecting  sale  can  not' 
plead  that  he  received  no  benefit  therefrom. 

An  agent  sued  for  fraudulent  misrepresentation  in  effecting  a 
sale  can  not  defend  on  the  ground  that  he  received  no  personal 
benefit,  and  has  paid  over  the  entire  purchase  price  to  his  prin- 
cipal. Haener  v.  McKenzie,  154  N.  W.  59,  188  Mich.  27. 


634:  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

Sec.  696.  Under  general  denial  can  prove  contract  made  and 
non-performance  by  plaintiff. 

In  an  action  on  an  express  contract  for  commissions  for  pro- 
curing purchasers  of  land,  the  defendant  was  entitled  under  a 
general  denial  to  offer  testimony,  not  only  denying  the  contract 
as  claimed,  but  also  proving  the  contract  which  they  in  fact 
made,  and  non-performance  thereof  by  the  plaintiff.  Tracey  Land 
Co.  v.  Polk,  etc.  Co.,  131  Iowa,  40,  107  N.  W.  1029;  Harris  v. 
Moore,  134  Iowa,  704,  112  N.  W.  163;  Weaver  v.  Richards,  156 
Mich.  320.  Compare  Sec.  682. 

Sec.  696a.  Evidence  that  owner  promised  commission  to 
broker  if  farm  sold  without  his  personal  sale  admissible 
without  being  specially  pleaded. 

In  an  action  for  broker's  commission,  evidence  that  defendant 
offered  to  help  advertise  the  farm,  and  stated  that  if  any  one 
came  plaintiff  should  take  charge  of  him  and  he  would  get  his 
commission  just  the  same,  was  admissible,  though  not  pleaded,  to 
show  scope  of  agency.  Ross  v.  Major,  163  S.  W.  880,  178  Mo. 
App.  431. 

Sec.  697.  Statute  of  frauds  not  available  as  a  defense  to  ac- 
tion by  broker  for  commissions. 

In  an  action  to  recover  commissions  or  compensation  for  a 
sale  of  land  by  a  broker,  that  the  contract  with  the  broker  was 
within  the  statute  of  frauds  is  no  defense.  Stephens  v.  Bailey, 
149  Ala.  256,  42  S.  740;  Kepner  v.  Ford  (N.  Dak.  Sup.  '07),  111 
1ST.  W.  619;  Pope  v.  Caddell,  31  Ky.  L.  E.  412,  102  S.  W.  327; 
Bailey  v.  Padgett,  70  S.  637,  195  Ala.  293. 

Sec.  698.  Answer  that  "sale  was  not  consummated  and  plain- 
tiff not  entitled  to  recover"  no  defense. 

In  an  action  to  recover  a  commission  for  a  sale  of  defendant's 
property,  an  allegation  in  the  answer  that  the  sale  "was  not  con- 
summated, by  reason  of  which  plaintiffs  are  not  entitled  to  re- 
cover of  defendants,"  states  no  defense,  as  such  failure  may  have 
resulted  from  defendants'  fault,  they  having  admitted  that  plain- 
tiff furnished  them  a  purchaser.  Atterbury  v.  Hopkins,  122  Mo. 
App.  172,  99  S.  W.  11. 


PLEADINGS,  PRACTICE,  ETC.  635 

Sec.  698a,  Where  defendant  released  party  to  exchange,  he 
can  not  plead  that  time  to  pay  note  due  on  sale  has  not 
expired. 

Where  an  owner  who  gave  his  note  to  a  broker  for  commission 
for  procuring  an  exchange  of  land,  upon  an  agreement  that  the 
broker  should  wait  until  the  owner  sold  the  farm  received  in  ex- 
change, released  the  other  party  from  the  agreement  to  exchange, 
he  can  not  claim  that  the  time  for  paying  the  note  had  not  ex- 
pired. Goldberry  v.  Thomas,  165  S.  W.  1179,  178  Mo.  App.  334. 

Sec.  699.  To  establish  illegality  of  oral  appointment  of  bro- 
ker the  defense  must  be  specially  pleaded. 

When,  in  an  action  for  commissions  earned  by  a  broker  under 
an  oral  contract  of  employment  to  procure  a  purchaser  of  real 
estate,  no  illegality  in  the  contract  appeared  on  the  face  of  the 
complaint  or  in  the  evidence  to  sustain  the  action,  the  defense 
that  under  the  penal  code  a  written  authorization  to  procure  a 
purchaser  of  real  estate  is  necessary  must  to  be  available  be  spe- 
cially pleaded.  StrunsU  v.  Geiger,  101  N.  Y.  S.  786,  52  Misc. 
134.  Compare  Jamison  v.  Hyde,  141  Gal.  109,  74  P.  695.  See. 
668. 

Sec.  699a.  On  owner's  breach,  no  defense  that  broker's  com- 
missions depended  on  consummation  of  sale. 

Where  a  contract  for  the  sale  of  real  property  procured  by  a 
broker  was  not  consummated,  owing  to  the  vendor's  default,  that 
it  had  been  orally  agreed  between  the  vendor  and  the  broker  that 
no  commission  should  be  paid  unless  the  sale  was  consummated, 
was  no  defense  to  the  broker's  right  to  recover  compensation. 
McLane  v.  Petty,  159  S.  W.  891. 

Sec.  700.  Where  agent  acted  for  both  parties  by  consent, 
allegation  of  bad  faith  by  defendant  states  no  defence. 

The  only  fraud  charged  by  the  answer,  in  an  action  by  real 
estate  agents  for  commissions  for  trading  defendant's  land  being 
that  plaintiffs  were  in  the  employ  of  the  other  party  to  the 
trade  when  they  were  employed  by  defendants,  which  fact  of 
dual  employment  plaintiffs  by  their  reply  admitted  and  justi- 


636  AMERICAN   LAW    BEAL   ESTATE   AGENCY. 

fied  on  the  ground  that  it  was  with  the  knowledge  and  consent 
of  both  parties,  defendants  cannot  avail  themselves  of  the 
defense  that  plaintiffs  acted  in  bad  faith  toward  both  parties 
by  each  attempting  to  testify  as  to  the  value  of  the  land  of 
the  other.  Cook  v.  Platt,  126  Mo.  App.  553,  104  S.  W.  1131. 

Sec.  700a.    Broker's  refusal  to  pay  part  of  costs  no  defense  to 
action  for  his  commissions. 

"Where  a  broker  bound  a  purchaser  by  an  enforceable  contract, 
the  broker's  refusal  to  fulfill  a  promise  to  pay  one-half  of  the 
costs  of  the  seller's  suit  to  enforce  the  contract  was  no  defense 
to  the  broker's  right  to  commissions.  Pinkerton  v.  Hudson 
(Ark.  Sup.  '08),  113  S.  W.  35. 

Sec.  701.    Put  in  issue  by  general  denial,  and  not  necessary  to 
plead  sale  not  consummated. 

Where,  in  an  action  for  a  real  estate  broker's  commissions 
to  be  paid  on  securing  a  purchaser,  plaintiff  relied  upon  an 
agreement  for  a  sale  made  by  the  owner  to  a  prospective  pur- 
chaser secured  by  the  broker,  it  was  not  necessary  for  the  owner 
to  plead  that  the  contract  was  not  consummated  by  a  sale, 
his  general  denial  putting  in  issue  the  fact  of  a  sale,  that  being 
necessary  to  entitle  the  broker  to  recover.  Wilson  v.  Ellis,  (Tex. 
Civ.  App.  '08),  106  S.  W.  1152;  Arthur  v.  Porter  (Tex.  Civ. 
App.  '09),  116  S.  W.  127. 

Sec.  702.    That  interest  terms  differed  no  defense  where  plain- 
tiff offered  to  pay  the  difference. 

Where  brokers  procured  a  purchaser  ready,  able  and  willing 
to  purchase  on  defendant's  terms,  it  was  no  defense  to  an 
action  for  commissions  that  the  memorandum  of  sale  did  not 
provide  for  exactly  the  same  interest  terms  that  defendant  de- 
manded, plaintiffs  having  offered  at  the  time  to  pay  the  differ- 
ence. Bicker  v.  Post,  110  N.  Y.  S.  79,  125  App.  Div.  607.  Com- 
pare, Young  v.  Ruhwedel,  119  Mo.  App.  231,  96  S.  W.  228. 

Sec.  703.    Averment  not  objectionable  as  amounting-  to  the  gen- 
eral issue. 

A  plea  to  a  declaration  by  real  estate  brokers  for  commissions 
averring  that  the  brokers  did  not  sell  the  property  to  the  pur- 


PLEADINGS,  PKAOTIOE,  ETC.  637 

chasers  named  for  the  owners  for  the  amounts  named,  and  that 
the  purchasers  did  not  pay  the  owners  such  amount  for  the 
property,  and  that  the  owners  never  were  indebted  as  averred, 
was  not  bad  as  amounting  only  to  the  general  issue,  as  a  plea 
is  not  objectionable  on  that  ground,  unless  it  sets  up  matters 
of  fact  merely  amounting  to  a  denial  of  such  allegations  in 
the  declaration  as  on  general  issue  would  have  to  be  proved  to 
support  the  case.  Seff  v.  Brotman,  70  A.  106,  108  Md.  278; 
Bradley  v.  Blandin,  104  A.  11,  —  Vt.  Sup.  — . 

Sec.  703a.    Improper  defenses. 

(1)  Owners   having  terminated  broker's   negotiations   with   a 
prospective  customer,  and  themselves  obtained  an  option  directly 
from  him;  held,  not  entitled  to  plead  the  terms  of  such  contract 
as  a  defense  to  the  broker's  right  to  commissions.     Duncan  v. 
Parker,  142  P.  657,  81  Wash.  340,  L.  K.  A.  1915  A,  804. 

(2)  That  a  broker  employed  to  sell  lands,  under  a  general 
contract,  made  a  sale  at  a  price  lower  than  that  originally  de- 
manded, is  no  defense  in  his  action  to  recover  commissions  under 
an  ordinary  agency  contract.    Larner  v.  Harvey,  155  N.  W.  427, 
189  Mich.  249. 

(3)  It  is  no  defense  to  an  action  by  an  agent  to  recover  com- 
mission for  selling  real  estate,  that  the  principal  does  not  hold 
title  to  the  land.    Sturgeon  v.  Culver,  124  P.  419,  87  Kan.  404, 
Ann.  Gas.  1913  E,  341. 

(4)  Where    defendant  had   voluntarily,   without   the   plaintiff 
broker's  consent,  released  the  purchaser,  refusal  of  the  purchaser 
to  buy  the  property  was  not  available  as  a  defense.     Swift  v. 
Moore,  82  S.  E.  914,  15  Ga.  App.  254. 

(5)  Where  the  owners  agreed  to  accept  a  certain  sum  in  lieu 
of  performance  of  a  contract  procured  by  the  defendant  brokers; 
held,  that  they  could  not,  as  against  defendants,  deny  that  pay- 
ment of  such  sum  was  equivalent  to  performance.    Davis  v.  Rose- 
berry,  148  P.  629,  95  Kan.  411. 

(6)  Fraudulent  misrepresentation  made  by  a  broker  after  de- 
fendant is  brought  to  contract  an  exchange,  will  not  constitute  a 
defense  to  a  suit  for  commission  for  procuring  a  customer  ready, 
willing  and  able  to  trade,  but  with  whom  principal  refused  to 


638  AMERICAN   LAW   HEAL   ESTATE   AGENCY. 

carry  out  a  contract  for  an  exchange.     Duncan  v.  Turner,  154  S. 
W.  816,  171  Mo.  App.  661. 

(7)  In  an  action  for  commission  for  a  sale  of  land  under  a 
written  option  to  buy  at  a  fixed  price,  it  is  no  defense  that  the 
broker  was  also  paid  a  commission  by  the  purchaser  to  whom  he 
assigned  his  option.    Runnison  v.  Morrison,  76  S.  E.  457,  71  W. 
Va.  254. 

(8)  If,  after  having  made  a  valid  agreement  for  an  exchange 
of  property,  one  party  arbitrarily  decides  not  to  fulfil  the  agree- 
ment, he  can  not  plead  such  change  of  mind  against  the  broker 
in  an  action  for  commission.     Neuer  v.  Jaffe,  165  N".  Y.  Sup. 
113,  179  App.  Div.  37. 

(9)  Though  broker's  contract  provided  for  payment  of  com- 
missions only  when  deeds  for  exchange  of  properties  were  deliv- 
ered, and  excepting,  if  exchange  of  deeds  was  prevented  through 
fault  of  the  principal,  and  broker  had  fully  performed,  want  of 
exchange  was  no   defense  to  claim  for  commission.     Phelps   v. 
Monroe,  165  N.  W.  471,  —  Wis.  Sup.  — . 

(10)  In  an  action  for  commissions  on  a  purchase  of  real  es- 
tate, under  a  contract  by  which  the  plaintiff  was  to  receive  one 
dollar  per  acre  for  his  services,  in  consideration  of  which  he  was 
to  do  all  necessary  work  and  secure  a  good  title  to  the  premises, 
the  defendant  cannot  set  up  as  a  defense  that  the  plaintiff  was 
serving  two  masters,  inasmuch  as  he  was  trustee  for  certain  bond- 
holders, who  were  the  virtual  owners  of  the  property,  if  it  appears 
that  the  plaintiff's  connection  with  the  bondholders  had  ceased  at 
the  time  of  the  purchase.     Walker  v.  Brown,  64  Pa.  Super.  Ct. 
159. 

(11)  In  an  action  for  commissions  for  making  an  oil  and  gas 
lease,  it  was  no  defense  that  agent  did  not  procure  a  written  lease 
where   non-performance   of   lease   was    due   to   lessor's   own    aci. 
Strickland  v.  Palmer,  172  P.  932,  —  Okl.  Sup.  — . 

(12)  Where  an  executor,  who  was  also  a  real  estate  broker, 
proposed  to  sell  property  belonging  to  a  devisee  on  commission, 
that  the  owner  was  represented  by  an  attorney,  who  dealt  with 
the  broker,  constituted  no   defense  as  against  a  charge  of  bad 
faith  on  the  broker's  part  in  failing  to  give  information  as  to  the 
value  of  the  land.    McCulley  v.  Rivers,  170  N.  W.  24,  200  Mich. 
417. 


PLEADINGS,  PRACTICE,  ETC.  639 

(13)  In  an  action  by  superintendent  of  apartment  house,  in 
which  defendant  had  an  apartment,  for  commission  for  his  pro- 
curing a  sub-lessee  of  defendant's  apartment,  defendant  could  not 
defend  on  the  ground  that  if  any  commission  was  earned  it  be- 
longed to  plaintiffs  employer,  that  being  a  matter  between  plain- 
tiff and  his  employer,  and  no  concern  of  defendant.  Cadman  v. 
Garcia,  182  N.  Y.  Sup.  797. 

Sec.  703b.    Defense  not  properly  pleaded. 

(1)  Brokers  who  procured  a  purchaser  who  signed  a  contract, 
but  refused  to  execute  because  of  a  shortage  of  three  feet  in  the 
dimensions  specified  in  the  contract  of  sale,  which  corresponded 
with  the  contract  of  employment  of  the  brokers,  are  entitled  to 
their  commissions,  notwithstanding  a  claim  of  defendant  that  the 
brokers  knew  the  actual  dimensions  when  employed,  where  such 
defense  was  not  pleaded.  Solcoldki  v.  Bliestift,  129  N.  Y.  Sup.  26. 

Sec.  703c.    Sufficient  defenses. 

(1)  In  an  action  by  a  real  estate  broker  to  recover  commission, 
an  affidavit  of  defense  is  sufficient  which  avers  that  the  defendant 
agreed  in  writing  to  pay  a  commission  of  5%  of  the  selling  price, 
that  the  plaintiff  furnished  him  with  a  buyer  for  his  property, 
that  in  addition  to  the  written,  there  was  a  verbal  agreement 
made  at  the  same  time,  that  the  plaintiff  was  only  to  receive  hi.? 
commission  in  the  event  of  the  buyer  making  final  settlement,  the 
same  to  be  paid  out  of  the  moneys  paid  by  the  buyer  to  the  de- 
fendant, and  that  the  purchaser,  whom  plaintiff  had  produced, 
had  refused  to  make  final  settlement,  leaving  the  property  still 
entirely  in  the  ownership  of  the  defendant.     Lowenstein  v.  Mc- 
Peak,  48  Pa.  Super.  Ct.  280. 

(2)  The  owner  of  property  dealing  with  a  real  estate  agent  in 
a  matter  of  exchange  of  properties,  may  rely  upon  representations 
by  such  agent  as  to  the  title  to  the  property  to  be  acquired,  and 
may   urge   reliance   upon   such   representations,    if   shown   to   be 
false,  as  a  defense  to  an  action  for  commissions,  without  showing 
that  he  exercised  ordinary  prudence.     Howard  v.  Anderson,  163 
111.  App.  256. 

(3)  The  fact  that  the  truth  as  to  the  broker's  false  representa- 
tions as  to  the  property  to  be  received  by  the  landowner,  under 


640  AMERICAN   LAW  BEAL   ESTATE   AGENCY. 

a  contract  of  exchange,  could  have  been  learned  on  inquiry,  did 
not  prevent  them  from  being  a  defense  to  the  broker's  action 
for  compensation,  the  client  being  entitled  to  rely  on  the  broker's 
statements.  Duncan  v.  Turner,  154  S.  W.  816,  171  Mo.  App.  661. 

(4)  Under  Eev.  Civ.  Stat.  1911,  Art.  1829,  the  issue  of  rati- 
fication of  unauthorized  terms  of  a  broker's  contract  of  sale  held 
raised,   in   an   action  for  commission,   by   the   allegation   of   the 
answer  that  defendant  refused  to  accept  said  terms,  and  to  thai- 
extent  repudiated  the  contract.    Wilson  v.  Burch,  162  S.  W.  1018, 
—  Tex.  Civ.  App.  — . 

(5)  An  answer  to  action  by  a  broker  for  commissions  for  fur- 
nishing a  purchaser,  which  denied  each  and  every  allegation  of 
the  petition,  in  specific  terms,  and  alleged  that  it  was  agreed  that 
if   plaintiff   produced   a   purchaser    who    would    "purchase"    and 
"pay"  for  the  property  at  a  certain  price,   then  the   defendant 
would  pay  plaintiff  the  sum  of  $5,000,  "the  difference  between  the 
price  for  which  plaintiff  was  willing  to  sell  and  the  price  plain- 
tiff represented  the  purchaser  produced  by  him  would  pay  there- 
for; held  to  allege  a  special  contract  and  not  to  admit  the  con- 
tract of  employment  alleged  in  the  petition,  which  was  based  on 
the  general  rule  that  a  broker  is  entitled  to  compensation  when 
he   furnishes   a   purchaser  ready,   willing   and   able   to   perform. 
Murphy  v.  W.  &  W.  Live  Stock  Co.,  189  P.  857,  —  Wyo.  Sup.  — . 

(6)  In  an  action  for  a  real  estate  broker's  commission,  an  an- 
swer admitting  the  listing  of  the  property  with  plaintiff  to  find 
a  purchaser,  and  alleging  that  defendant,  before  notice  by  plain- 
tiff that  he  had  found  a  purchaser,  had  sold  the  property  to  an- 
other, was  not  demurrable  as  failing  to  state  a  defense.     Haggart 
v.  King,  190  P.  763,  —  Kan.  Sup.  — . 

Sec.  703d.    Insufficient  defenses. 

(1)  In  an  action  for  broker's  commission,  facts  held  insuffi- 
cient to  establish  a  defense  of  double-dealing  on  plaintiff's  part 
which  would  bar  his  right  to  commissions.     Blakely  v.  Waller  & 
Holz  Co.,  167  S.  W.  1170,  180  Mo.  App.  176. 

(2)  In  an  action  for  a  broker's  commission  for  procuring;  a 
purchaser  to  negotiate  with  defendants,  without  disclosing  that  he 
was  plaintiff's  customer,   held  insufficient.     Handley  v.   Shaffer, 
59  S.  286,  177  Ala.  636. 


PLEADINGS,  PBACTICE,  ETC.  641 

(3)  In  realty  broker's  action  for  commissions  for  having  pro- 
cured sale,   defendant's   answer,   facts   not   showing   affirmatively 
plaintiff  procured  the  sale  as  made,  but  negativing  it  was  so  pro- 
cured,   alleging   specifically   facts    in    connection   with    charge    of 
double  agency  which  constituted  defense;  held,  not  subject  to  ex- 
ception on  ground  it   did  not  negative  plaintiff  was   procuring 
cause  of  sale.     Buck  v.  Woodson,  209  S.  W.  344,  -  -  Tex.  Civ. 
App.  — . 

(4)  In   land-broker's   action   on   commission   notes,    in   which 
owners  seek  to  avoid  liability  and  counterclaim  for  damages  upon 
ground  of  broker's  misrepresentation  as  to  the  value  of  property 
received  in  exchange;  held,  that  answer  failed  to  plead  that  prop- 
erty received  in  exchange  was  not  worth  as  much  as  property  re- 
ceived in  return  therefor.     Stouffer  v.  Eymann,  183  P.  210,  — 
Cal.  App.  — . 

(5)  An  answer,  in  an  action  by  a  broker  to  recover  compensa- 
tion, admitted  that  defendant  listed  real  estate  with  the  plaintiff 
and  signed  a  contract,  and  that  defendant  had  great  confidence 
in  plaintiff,  but  that  defendant,  after  he  had  signed  the  contract, 
learned  that  plaintiff  had  also  represented  other  parties  in  the 
transaction  and  prepared  the  contract  of  sale,  was  not  sufficient 
as  a  charge  of  fraud.     Eickmeier  v.  Geddes,  126  1ST.  E.  859,  — 
Ind.  App.  — . 

(6)  In  an  action  on  a  promissory  note,  an  answer  which  al- 
leged that  the  note  was  given  to  pay  plaintiff  a  commission  for 
a  sale  of  land  to  defendant,  and  that  after  defendant  acquired  the 
land  he  learned  that  plaintiff  was  not  authorized  by  the  vendor 
to  represent  her  in  making  the  sale,  is  insufficient  to  show  want 
of  consideration,  since  the  sale  to  defendant  by  the  vendor  rati- 
fied plaintiff's  acts  if  they  were  unauthorized.     Trotti  v.  Neams, 
105  S.  E.  443,  —  S.  C.  Sup.  — . 

Sec.  703e.    Proof  necessary  to  establish  defense. 

(1)  Where  duality  of  real  estate  agency  is  relied  on  as  a  de- 
fense to  an  agent's  action,  defendant  must  prove  not  only  the 
duality  of  the  agency,  but  that  same  was  not  known  to  both  par- 
ties.   Bellew  v.  Ware  &  Harper,  84  S.  E.  597,  10  Ga.  App.  149. 

(2)  In  an  action  to  recover  commissions  by  one  who  has  been 
employed  as  an  agent  to  effect  certain  resales,  a  defense  whicii 


642  AMERICAN  LAW    BRAL   ESTATE  AGENCY. 

consists  of  a  charge  that  such  agent  had  made  certain  secret  un- 
lawful profits,  in  connection  with  his  employment,  calculated  to 
defeat  a  recovery,  must  be  established  by  a  preponderance  of  the 
evidence.  Windsor  v.  Kelley  Coal  Co.,  147  111.  App.  451. 

Sec.  703f .    What  may  be  proved  under  a  general  denial. 

(1)  Under  a  general  denial,  in  an  action  for  broker's  commis- 
sions, defendant  could  show,  in  the  absence  of  express  objection, 
that  he  and  plaintiff  were  closely  related,  so  as  to  raise  a  pre- 
sumption that  plaintiff's  services  were  gratuitous.  Carl  v.  Wol- 
coii,  156  S.  W.  334,  —  Tex.  Civ.  App.  — . 

Sec.  703g.    Conflict  between  answer  and  answers  to  special 
interrogatories. 

(1)  Answers  to  special  interrogatories  that  defendant  agreed 
to  pay  plaintiffs  half  the  commissions  derived  by  defendant  from 
the  sale  of  any  land  to  persons  sent  from  plaintiffs  to  defendant; 
held,  to  conflict  with  answers  that  the  agreement  for  compensa- 
tion was  merely  to  make  a  fair  division  of  the  profits.  Trice  & 
Ludolph  v.  Cone,  163  S.  W.  587,  —  Tex.  Civ.  App.  — . 

Sec.  703h.    Allegation  sufficient  to  permit  introduction  of  tes- 
timony in  absence  of  demurrer. 

(1)  In  an  action  for  commissions  by  a  firm  of  real  estate  bro- 
kers, plea  that  defendant  owners  voluntarily  consummated  sale 
with  purchaser  produced  by  plaintiff  firm  on  terms  dissimilar  to 
those  specified  by  owners,  though  general,  was  sufficient  to  permit 
introduction  of  testimony,  in  absence  of  demurrer  raising  it. 
Hoddle  v.  Malone  Real  Estate  Co.,  196  S.  W.  347,  —  Tex.  Civ. 
App.  — . 


CHAPTER  VIII. 

SECTION.  SECTION. 

704,   704a.     What  are  not  depar        "05  to  728c,  inclusive.     Examples 
tures.  on  the  question  of  burden 

of  proof. 

Sec.  704.    What  are  not  departures. 

Where  defendant  agreed  to  pay  commissions  for  sales  of 
lands  to  customers  "procured"  by  plaintiffs,  an  instruction  that 
defendants  were  liable  if  plaintiffs  "furnished"  customers,  is 
not  a  departure  from  the  issues  made.  Boyd  v.  Watson,  101 
Iowa  214,  70  N.  W.  120.  A  petition  alleged  that  defendant 
promised  to  pay  plaintiff  and  another  a  commission  for  selling 
defendant's  farm,  but  refused  to  pay  the  same  on  sale  of  the 
farm;  an  amended  petition  alleged  in  the  first  count  that  de- 
fendant had  promised  to  pay  plaintiff  a  commission  for  selling 
the  farm,  but  had  paid  one-half  thereof;  the  second  count  al- 
leged that  defendant  agreed  to  pay  plaintiff  and  another  a 
certain  sum  each  for  selling  the  farm,  but  that  on  sale  thereof 
refused  to  pay  plaintiff  his  part  of  the  commissions.  Held,  that 
the  amended  petition  did  not  embrace  a  different  cause  of  action 
from  that  pleaded  in  the  original  petition,  there  being  nothing 
in  either  of  the  pleadings  to  indicate  that  plaintiff  intended  to 
charge  the  existence  of  a  partnership  relation  between  himself 
and  the  other  agent  acting  with  him  in  selling  the  farm.  Sain 
v.  Booney,  125  Mo.  App.  176,  101  S.  W.  1127. 

Sec.  704a.    No  variance  between  allegations  and  proof. 

In  an  action  to  recover  commissions  for  procuring  a  loan, 
there  is  no  variance  between  an  allegation  that  plaintiff  pro- 
cured a  loan  for  defendant,  and  evidence  that  at  defendant's 
request  and  on  his  promise  to  pay  a  commission,  plaintiff  pro- 
cured a  loan  to  be  made  by  a  corporation  formed  by  defendant, 
and  a  common  count  that  plaintiff  performed  work  for  defend- 
ant, of  the  price  and  value  of  a  certain  sum,  authorized  a  finding 

643 


644  AMEKICAN  LAW    EEAL   ESTATE  AGENCY. 

that  defendant  agreed  to  pay  plaintiff  the  usual  commissions  or 
the  reasonable  value  of  his  services.  Williams  v.  Clowes,  75  Conn. 
155,  52  A.  820. 

Sec.  705.     Burden  of  proof  on  defendant  that  broker's  au- 
thority was  revoked. 

One  who  has  given  a  broker  authority  until  further  notice  to 
sell  land  has  the  burden  of  proving  that  he  revoked  the  authority 
before  the  broker  found  a  purchaser.  Bourke  v.  Van  Keuren,  20 
Colo.  95,  36  P.  882;  Clements  v.  Stapleton,  136  Iowa,  137,  113 
K  W.  546;  Bradley  v.  Blandin,  100  A.  920,  91  Vt.  472. 

Sec.  705a.    Burden  on  defendant  to  show  alleged  abandonment 
of  agency  by  broker. 

In  an  action  by  a  broker  for  compensation  for  finding  a  pur- 
chaser, agency  having  been  proven,  the  burden  was  on  defendant 
to  show  alleged  abandonment.    McFarland  v.  Boucher,  134  N.  W. 
91,  153  Iowa,  716. 

Sec.  705b.    When  double  commission  proved,  burden  on  bro- 
ker to  show  he  was  a  mere  middleman. 

When  contract  of  double  commission  is  proven,  burden  of 
proof  is  on  broker  to  show  that  he  was  a  mere  middleman.  Jon- 
son  v.  Bowen,  164  N.  W.  4,  37  N.  D.  352. 

Sec.  706.     Burden  on  plaintiff  to  show  double  employment 
was  with  defendant's  knowledge  and  consent. 

The  burden  of  showing  that  one  employing  a  broker  to  find 
a  customer  to  exchange  real  estate  with  him  had  notice  that  the 
broker  was  to  receive  a  commission  from  the  customer  is  on  the 
broker.  Hannan  v.  Prentis,  124  Mich.  417,  83  N.  W.  102;  Rob- 
inson v.  Clock.,  55  K  Y.  S.  976,  38  App.  Div.  67 ;  Stapp  v.  God- 
frey, 139  N.  W.  158,  158  Iowa,  376;  Thomas  v.  Wychoff,  174  N. 
W.  26,  —  Iowa  Sup.  — .  Compare  Redmond  v.  Henke,  137  Iowa, 
228,  114  N.  W.  885. 


PLEADINGS,  PBACTICE,  ETC.  645 

Sec.  706a.    Burden  on  broker  to  show  not  only  that  the  seller 
knew  of  double  agency,  but  the  purchaser  as  well. 

Whenever  a  real  estate  broker,  who  is  representing  the  pur- 
chaser may  recover  commissions  from  the  seller,  the  broker 
must  prove,  not  only  that  the  seller,  but  the  purchaser  as  well, 
was  aware  of  his  double  agency,  and  that  the  trade  was  made 
with  such  knowledge.  Denison  v.  Gault,  132  Mo.  App.  301,  111 
S.  W.  844.  See  also  Sec.  559. 

Sec.  707.    Burden  of  agent's  want  of  authority  is  on  party 

making  allegation. 

The  burden  of  proving  want  of  authority,  where  the  agent 
executes  a  contract  in  the  name  of  the  principal,  lies  on  the 
party  claiming  the  want  of  authority.  Plumb  v.  Milk,  19  Barb. 
(N.  Y.),  74.  This  conflicts  with  the  rule  in  actions  brought  by 
alleged  agents  to  recover  commissions.  See  Sec.  712. 

Sec.  708.    Burden  is  on  agent  to  establish  fairness  in  transac- 
tion. 

The  burden  of  proof  is  on  the  agent  to  establish  his  fairness 
in  the  transaction.  Bubidoeux  v.  Parks,  48  Cal.  215;  Brown 
V.  Post,  1  Hun  (N.  Y.),  303;  Neely  v.  Anderson,  2  Strob.  (S. 
C.)  Eq.  262;  Condit  v.  Blackwell,  22  N.  J.  Eq.  481;  Alwood  v. 
Mansfield,  59  111.  496;  Eanna  v.  Haynes,  42  Wash.  284,  84  P. 
861;  Walker  v.  Carrington,  74  111.  446;  Liemven  v.  Kline  (Iowa 
Sup.  '09),  120  N.  W.  312.  Contra,  Buckingham  v.  Harris,  10 
Colo.  455,  15  P.  817;  Pollatschek  v.  Goodwin,  40  N.  Y.  682, 
17  Misc.  587. 

Sec.  709.    Burden  of  proof  as  to  knowledge  on  part  of  prin- 
cipal of  dual  agency. 

The  burden  of  proving  knowledge  on  the  part  of  the  principal, 
in  some  States,  rests  on  the  agent.  Young  v.  Trainor,  158  111. 
428,  42  N.  E.  139;  Lynch  v.  Fallon,  11  R.  I.  311;  Jansen  v. 
Williams,  36  Neb.  869,  55  N.  W.  279;  Lena  v.  Stewart,  95  A. 
539,  89  Vt.  286,  Ann.  Gas.  1917  A,  509.  In  Georgia,  the  burden 
of  proving  knowledge  on  the  part  of  the  principal  rests  on  the 
latter,  and  when  dual  agency  was  relied  on  it  was  necessary  for 
the  defendants  to  prove  not  only  the  fact  of  such  agency,  but 


646  AMERICAN  LAW    REAL   ESTATE   AGENCY. 

that  the  same  was  not  known  to  both  parties.  Red  Cypress  Lum- 
ber Co.  v.  Perry,  118  Ga.  876,  45  S.  E.  674;  Hansley  v.  Monroe, 
103  Ga.  279,  29  S.  E.  928. 

The  burden  of  the  defense  against  the  owner's  possible  double 
liability  to  each  of  two  brokers  with  whom  he  had  independently 
contracted  to  pay  a  commission  on  the  procurement  of  a  pur- 
chaser ready,  able  and  willing  to  buy  realty  at  a  specified  price, 
is  on  the  owner.  Alton  &  Peters  v.  Merriit,  177  N.  W.  770,  — 
Minn.  Sup.  — . 

Sec.  710.    Burden  on  selling  broker  that  principal  consented  to 
the  broker  purchasing  the  property. 

If  an  agent  employed  to  sell  property  buys  it  for  himself,  in 
an  action  for  compensation  the  burden  of  proving  that  the 
principal  had  knowledge  of  the  facts  and  consented  to  the  sale 
rests  on  the  agent.  Janson  v.  Williams,  36  Neb.  869,  55  N.  W. 
279,  20  L.  R.  A.  207 ;  Grant  v.  Hardy,  33  Wis.  668. 

Sec.  711.    Burden  on  broker  to  prove  authority  of  owner's 

agent  to  employ  him. 

If  the  contract  is  executed  by  the  owner's  agent,  in  order  to 
recover  commissions  the  broker  must  prove  the  agent's  author- 
ity to  make  it.  Stinde  v.  Scharff,  36  Mo.  App.  15. 

Sec.  712.    Broker  bears  the  burden  of  proving  his  employment. 

In  an  action  by  a  broker  against  his  principal  for  compensa- 
tion, plaintiff  bears  the  burden  of  proving  by  a  preponderance 
of  the  evidence  that  he  was  employed  by  defendant  to  find  a 
purchaser  and  that  he  found  a  responsible  one.  Hammond  v. 
Mitchell,  61  111.  App.  144;  Harrison  v.  Prestroski,  97  Iowa,  166, 
66  N.  W.  93;  Chilian  v.  Butler,  1  E.  D.  Smith,  150;  Schatzberg 
v.  Grosworth,  84  N.  Y.  S.  259;  Barrel  v.  Veath,  13  N/Y.  St. 
738;  Summa  v.  Dereskiawicz  (Conn.  Sup.  '09),  74  A.  906;  Bal- 
lentine  v.  Mercer,  130  Mo.  App.  605,  109  S.  W.  1037;  Rice  v. 
Neuman,  115  N".  Y.  S.  83;  Wltitehouse  v.  Gerdis,  145  N.  W.  338, 
95  Neb.  228 ;  De  Perow  v.  Groomes,  42  App.  D.  C.  287 ;  Groves  v. 
Oil  Belt  Trac.  Co.,  169  111.  App.  204;  Steinman  v.  Tully,  155  N. 
Y.  Sup.  215;  Wheelan  v.  Hunt,  133  P.  52,  37  Okl.  523;  Barrow 
v.  Newton,  48  Pa.  Super.  Ct.  382 ;  Jackson  v.  Lacy,  102  A.  584, 


PLEADINGS,  PRACTICE,  ETC.  647 

92  Conn.  256;  Balto.  Car  Wheel  Co.  v.  Clark,  104  A.  357,  —  Md. 
Sup.  — ;  Harris  v.  MilliTcan,  208  S.  W.  633,  —  Mo.  App.  — . 
Compare  Sec.  707. 

Sec.  712a.    What  broker  must  show  to  recover  on  an  implied 
contract. 

A  real  estate  broker  seeking  to  recover  commissions  for  pro- 
curing a  purchaser  of  real  estate,  under  an  implied  contract, 
must  show  that  he  rendered  his  services  under  an  honest  belief, 
reasonably  indicated  by  the  owner's  conduct,  that  a  request  had 
been  made  of  him  by  the  owner  to  render  the  services,  or  under 
such  circumstances,  in  the  absence  of  a  request,  as  indicated 
that  he  expected  to  be  paid  therefor,  and  that  the  owner,  know- 
ing the  circumstances,  availed  himself  of  the  benefit  of  the 
services  rendered.  Summa  v.  Dereskiawicz,  (Conn.  Sup.  '09), 
74  A.  906. 

A  broker  can  not  recover  for  his  services  without  showing  a 
contract  of  employment,  express  or  implied.  Welsh  &  Griffin  v. 
Cullenbaugh,  130  N.  W.  792,  150  Iowa,  692;  Einhorn  v.  P. 
Derby  <&  Co.,  128  1ST.  Y.  Sup.  659,  132  N.  Y.  Sup.  327;  Kinnon 
v.  PaerschTce,  133  N.  Y.  Sup.  528,  148  App.  Div.  839;  Rait  v. 
Carpenter,  138  N.  Y.  Sup.  460,  78  Misc.  Eep.  383 ;  Kane  v.  Sher- 
man, 130  1ST.  W.  222,  21  N.  D.  249;  Yarborougli  v.  Richardson, 
131  P.  680,  38  Okl.  11 ;  Loomis  v.  Leavell,  134  S.  W.  743,  —  Ter. 
Civ.  App.  — ;  Morrison  Mill  Co.  v.  American  Mercantile  Co.,  133 
P.  1033,  74  Wash.  452. 

A  contract  to  pay  a  real  estate  agent  a  commission,  though 
unilateral  in  its  inception,  becomes  a  valid  and  binding  contract 
when  tbe  agent  commences  his  efforts  to  sell  the  property.  Han- 
Ion  v.  Dunne,  189  111.  App.  123. 

Any  mining  company  knowing  an  investment  company  was  en- 
deavoring to  sell  its  mine,  acquiescing  in  its  efforts,  and  accept- 
ing offer  of  purchase  procured  by  it,  will  imply  promise  on  min- 
ing company's  part  to  pay  investment  company  the  reasonable 
worth  of  services.  Ham  &  Ham  Lead  &  Zinc  Co.  v.  Catherine 
Lead  Co.,  192  S.  W.  407,  269  Mo.  654. 

Plaintiff,  who  claims  commission  as  broker  in  effecting  a  sale 
of  oil  and  gas  properties  for  defendants,  has  burden  of  proving 
he  was  defendants'  agent  in  the  transaction,  and  that  defendants 


648  AMERICAN   LAW    REAL    ESTATE   AGENCY. 

agreed  to  pay  him  the  amount  claimed.     Levering  v.  Paova  Oil 
Co.,  243  F.  553,  156  C.  C.  A.  251. 

Sec.  712b.    Contract  of  employment  of  broker  by  implication. 

While  a  broker  who  voluntarily  brings  a  purchaser  to  the  owner 
of  land  is  not  entitled  to  a  commission,  if  he  endeavors  to  sell 
it  with  the  owner's  knowledge,  there  is  a  sufficient  consideration 
for  the  owner's  promise  to  pay  for  the  broker's  services  when  a 
purchaser  is  procured.  Toland  v.  Williams  &  Wiley,  129  S.  W. 
392,  —  Tex.  Civ.  App.  — ;  Wilson  v.  Sears,  166  S.  W.  38,  —  Tex. 
Civ.  App.  — ;  Peters  v.  Riley,  81  S.  E.  530,  73  W.  Ya.  785; 
Segnitz  v.  A.  OrossenbacJi  Co.,  149  N.  W.  159,  158  Wis.  511; 
Rigdon  v.  Moore,  --  N".  E.  901,  226  111.  382;  Roberts  v.  Howe, 
178  111.  App.  18;  Oudgel  v.  Cook,  142  S.  W.  1014,  146  Ky.  439. 

Sec.  712c.    On  finding  purchaser  broker  must  advise  principal. 

To  entitle  a  broker  to  a  commission,  where  no  contract  of 
sale  is  executed,  he  must  show  not  only  that  he  procured  a 
person  ready,  able  and  willing  to  purchase,  but  also  that  his 
employer  was  advised  and  given  opportunity  to  complete  a 
sale.  Coppage  v.  Howard,  96  A.  642,  127  Md.  512. 

Sec.  712d.  Statement  by  defendant  to  broker  after  sale 
closed  that  latter  was  agent,  insufficient  to  establish 
agency. 

A  statement  by  defendant,  after  the  closing  of  a  sale  of 
real  estate,  in  which  he  referred  to  plaintiff  as  the  agent  pro- 
curing the  purchaser,  does  not  establish  an  express  or  implied 
contract  between  the  parties  that  plaintiff  shall  share  in  the 
commissions  received  by  defendant.  Meyer  v.  Burmeister,  136 
N.  W.  1126,  29  S.  D.  458. 

Sec.  712e.  Broker  acting  for  another  in  purchasing  property 
acquires  no  right  thereby  to  commission  from  vendor. 

Where  a  real  estate  broker,  acting  for  another  who  desires 
to  purchase  real  estate,  approaches  the  owner  of  certain  prop- 
erty, and  negotiates  for  the  purchase  thereof,  no  contract  will 
be  implied  therefrom  on  the  part  of  such  owner  to  pay  the 
broker  for  his  services.  Turek  v.  Opava,  192  111.  App.  270. 


PLEADINGS,  PRACTICE,  ETC.  649 

Sec.  713.    Broker  who  claims  must  prove  exclusive  right  of 
sale. 

A  real  estate  broker  who  founds  his  right  of  action  for  com- 
missions on  the  owner's  agreement  to  give  him  the  sole  and 
exclusive  right  of  sale  of  the  property,  and  alleges  a  breach  of 
such  agreement  and  a  sale  effected  by  the  owner,  must  prove  that 
such  an  agreement  was  entered  into.  Wychoff  v.  Taylor,  13 
Daly  (N.  Y.)  564.  See  also  Sec.  13. 

Sec.  714.    Broker  must  prove  direct  employment,   ordinary 

agency  of  wife  for  husband  insufficient. 

To  sustain  an  action  for  commissions,  the  broker  must  show 
direct  employment  by  the  principal  or  a  direct  authority  for 
him  to  treat  with  the  agents  of  the  principal,  and  if  the  agency 
of  a  wife  for  her  husband  be  relied  upon,  special  authority  or 
ratification  must  be  shown.  Harper  v.  Goodall,  10  Abb.  N. 
Cas.  (N.  Y.)  161,  62  How.  Pr.  288;  Harrell  v.  Vieth,  13  N.  Y. 
St.  738. 

Sec.  715.    Burden  of  proof  on  defendant  claiming  contract 
signed  conditionally. 

Where  plaintiff,  in  an  action  to  recover  commissions  for  pro- 
curing a  purchaser  for  real  estate,  proves  the  execution  of  the 
contract  of  purchase  which  defendant  claims  was  signed  condi- 
tionally, the  burden  of  proving  such  defense  is  on  the  defendant. 
Folinsbee  v.  Sawyer,  36  N.  Y.  S.  405,  15  Misc.  293. 

Sec.   715a.     In  action  for  procuring  purchaser,  burden  of 
showing  why  contract  failed  not  on  broker. 

In  an  action  for  a  broker's  commission  for  procuring  pur- 
chaser, burden  was  not  on  the  broker  to  show  why  the  contract 
of  sale  was  not  carried  out.  Levin  v.  Lehr,  133  N.  Y.  Sup.  995. 

Sec.  716.    Burden  is  on  plaintiff  to  show  performance  of  obli- 
gations assumed. 

Plaintiff  bears  the  burden  of  proving  that  he  performed  his 
obligation  by  affecting  a  purchase,  procuring  a  responsible  pur- 
chaser or  making  an  enforceable  contract  of  asle  in  accordance 


650  AMERICAN   LAW    EEAL    ESTATE   AGENCY. 

with  his  instructions.  Hammond  v.  Mitchell,  61  111.  App.  144; 
Leahy  v.  Hair,  33  111.  App.  461 ;  Davis  v.  Gassette,  30  111.  App. 
41;  Pratt  v.  Hotchkiss,  10  111.  App.  603;  Peet  v.  Sherwood,  47 
Minn.  347,  50  N.  W.  241,  929 ;  Young  v.  Ruhwedel,  119  Mo.  App. 
231,  96  S.  W.  228;  Kirvin  v.  Barney,  57  N.  Y.  S.  812,  27  Misc. 
181;  Kirvin  v.  Barney,  61  N.  Y.  S.  122,  29  Misc.  614;  Cooper 
v.  Lawrence,  110  N.  Y.  S.  238;  Geiger  v.  Reiser  (Colo.  Sup.  '10), 
107  P.  267;  Kalkstein  v.  Jackson,  116  N".  Y.  S.  302;  Abbott  v. 
Lee,  85  A.  526,  86  Conn.  392;  West  v.  Hudson,  137  N.  W.  272, 
173  Mich.  553;  Henry  v.  Forfcer,  118  P.  205,  61  Or.  276,  judg. 
aff.  on  re.,  122  P.  298,  61  Or.  276;  Baldino  v.  Henneberry,  191 
111.  App.  368;  J.  A.  Dean  &  Son  v.  Goodrich,  140  N.  W.  435, 
160  Iowa,  98;  Duncan  v.  'Turner,  154  S.  W.  816,  171  Mo.  App. 
661;  Jennings  v.  Overholt,  172  S.  W.  449,  186  Mo.  App.  505; 
Newman  v.  Dunleavy,  149  P.  970,  51  Mont.  149;  Johnson  v. 
Payne  Inv.  Co.,  141  N.  W.  1022,  93  Neb.  652;  Jenkins  v.  Ma- 
honey,  127  N.  Y.  Sup.  573,  142  App.  Div.  653;  McCorry  v.  John 
C.  Wiarda  &  Co.,  134  K  Y.  Sup.  667,  149  App.  Div.  863 ;  Cook 
v.  Gordon,  137  P.  782,  68  Or.  557;  Hoffman  v.  Steele,  139  N.  W. 
733,  152  Wis.  84;  Dyar  v.  Stone,  137  P.  269,  23  Cal.  App.  143; 
Lowenstein  v.  McPeak,  48  Pa.  Super.  Ct.  280;  Swee  v.  Neumann, 
123  N.  Y.  Sup.  776,  67  Misc.  Eep.  605;  Schmidt  v.  Dunne,  163 
N".  Y.  Sup.  515 ;  Woolf  v.  Hamburger,  201  111.  App.  612 ;  Young 
v.  Dempsey,  67  Pa.  Super.  Ct.  534;  Brittain  v.  Rice,  204  S.  W. 
254,  —  Tex.  Civ.  App.  — ;  Sanden  &  Huse  v.  Ausenhus,  168  N". 
W.  801,  —  Iowa  Sup.  — ;  Thomas  v.  Wychoff,  174  N.  W.  26,  — 
Iowa  Sup.  — . 

Sec.  716a.     Broker  to  find  purchaser  not  required  to  show 
that  his  efforts  or  representations  induced  the  purchase. 

One  employed  to  procure  a  purchaser  for  a  house,  and  not  to 
negotiate  its  sale,  was  not  bound  to  prove  that  the  one  procured 
by  him  was  induced  to  buy  because  of  his  efforts  or  representa- 
tions. Matloch  v.  Jerabek,  164  N.  W.  587,  —  Minn.  Sup.  — . 

Sec.  717.    If  principal  refuses  customer  broker  must  prove  his 
ability  to  perform. 

If  the  principal  refuses  to  accept  the  customer  furnished  by 
the  broker,  in  an  action  to  recover  commissions  the  broker  must 


PLEADINGS,  PEACTICE,  ETC.  651 

prove  the  customer's  ability  to  complete  the  transaction.  Col- 
burn  v.  Seymour,  32  Colo.  430,  76  P.  1058;  Fay  v.  Ryan  (111. 
Sup.  '09),  88  N.  E.  974;  Dent  v.  Powell,  93  Iowa,  711,  61  N.  W. 
1043;  Russell  v.  Hurd,  113  111.  App.  63;  Colernan  v.  Meade,  13 
Bush  (Ky.),  358;  StaeUin  v.  Kramer,  118  Mo.  App.  329,  94  S. 
W.  785;  Clark  v.  Wilson,  41  Tex.  Civ.  App.  450,  91  S.  W.  627; 
Allison  v.  Chapman,  173  P.  389,  —  Cal.  App.  — ;  McDonald  v. 
Kimmell,  70  Pa.  Super.  Ct.  282.  Burden  on  defendant  to  prove 
irresponsibility  of  the  purchaser.  Cook  v.  Kronke,  4  Daly  (N. 
Y.),  268. 

Sec.  718.    Purchaser  asking  specific  performance  must  show 
validity  of  broker's  authority. 

Where,  in  a  suit  to  set  aside  a  contract  for  the  sale  of  land 
as  a  cloud  on  the  title,  the  purchaser  insisted  on  a  decree  for 
specific  performance,  and  the  broker  a  judgment  for  commis- 
sions, the  burden  of  showing  the  validity  of  the  broker's  au- 
thority to  make  the  sale  rested  on  the  purchaser  and  on  the 
broker.  Kilpatrick  v.  Wiley,  197  Mo.  123,  95  S.  W.  213. 

Sec.  719.    Burden  on  broker  to  prove  third  person  able  and 
willing  to  advance  cash  payment  to  purchaser. 

The  purchaser  was  unable  to  buy  the  land,  but  a  third  person 
agreed  to  furnish  the  money  necessary  to  make  the  cash  pay- 
ment; the  sale  was  not  made.  Held,  That  the  broker,  in  order 
to  recover  his  commissions,  must  prove,  not  only  that  the  pur- 
chaser was  ready  and  willing  to  buy,  but  that  the  third  person 
was  ready,  able  and  willing  to  advance  the  cash  payment.  Clark 
v.  Wilson,  41  Tex.  Civ.  App.  450,  91  S.  W.  627.  Also  that  pur- 
chaser has  cash  in  hand,  where  that  is  a  prescribed  condition. 
Waiters  v.  Dancey  (S.  Dak.  Sup.  '09),  122  N.  W.  430. 

Sec.  719a.    What  necessary  to  prove  before  contract  became 

binding. 

Where,  in  an  action  by  a  broker  for  commissions  for  the  sale 
of  real  estate,  it  was  shown  that  defendant  contracted  with  a 
third  person  for  an  exchange  of  property,  "subject  to  inspec- 
tion of  land  furnished  by  each  party,"  within  fifteen  days, 
otherwise  the  trade  should  be  considered  closed,  and  that  de- 
fendant refused  to  carry  the  contract  into  effect;  the  broker, 


652  AMERICAN   LAW    REAL   ESTATE   AGENCY. 

in  order  to  recover,  must  show  a  failure  of  defendant  to  inspect 
the  land  of  the  third  person,  for  the  right  to  recover  would  not 
he  made  out  without  proof  that  the  contract  between  the  de- 
fendant and  the  third  person  became  binding  by  defendant's 
failure  to  inspect.  Stotts  v.  Miller,  128  Iowa,  633,  105  N.  W.  127. 

Sec.  719b.    Where  mineral  rights  were  reserved,  to  recover, 
broker  must  show  purchaser  so  understood. 

Where  defendant  agreed  to  pay  plaintiff  certain  commissions 
for  the  sale  of  land,  with  the  mineral  rights  reserved,  plaintiff 
must  show  that  the  proposed  purchaser  would  accept  the  land 
subject  to  the  reservation,  in  order  to  recover  commissions.  Weaver 
v.  Richards,  120  N.  W.  818,  156  Mich.  320. 

Sec.  720.    Burden  on  broker  who  claims  right  to  retain  com- 
missions out  of  purchase  money. 

Where  an  agent  claims  the  right  to  retain  commissions  out  of 
the  price  received  on  a  sale  of  land  of  his  principal,  the  burden 
of  proof  is  on  him  to  show  a  legal  right  to  retain  his  principal's 
money  as  commissions.  Knott  v.  Midkoff,  114  La.  234,  34  S.  153. 

Sec.  721.    Defendant  alleging  plaintiffs  were  to  get  wife  to 

join  in  contract  must  prove. 

Where,  in  an  action  to  recover  commissions  for  a  sale  of 
defendant's  homestead,  their  answer  alleged  that  plaintiffs  were 
to  procure  the  wife  to  join  in  the  contract,  and  that  she  refused 
to  do  so,  the  burden  was  on  the  defendant  to  prove  such  fact. 
Merlin  v.  Sipprell,  93  Minn.  271,  101  N.  W.  169. 

Sec.  722.    Burden  on  broker  that  he  had  the  required  written 
authority  to  make  the  sale. 

In  an  action  by  a  broker  to  recover  commissions  for  selling 
land,  plaintiff  had  the  burden  of  showing  that  at  the  time  he 
made  the  sale,  he  had  the  written  authority  required  by  statute. 
Turner  v.  Lane,  93  N.  Y.  S.  1083,  47  Misc.  387. 

Sec.  723.    Burden  on  sub-agent  that  broker  had  authority  to 
employ  him. 

Where  negotiations  for  a  lease  are  with  a  broker  of  the 
owner  of  the  premises,  the  burden  is  on  the  sub-agent  claiming 


PLEADINGS,  PRACTICE,  ETC.  653 

commissions  to  show  that  the  broker  had  authority  to  employ 
him,  as  a  broker  authorized  to  lease  premises  presumptively 
is  not  authorized  to  employ  a  sub-agent.  Southback  v.  Ireland, 
95  N.  Y.  S.  621,  100  App.  Div.  45.  Compare,  Madler  v.  Pogor- 
ski,  124  Wis.  477,  102  N.  W.  892.  Sec.  791. 

Sec.  724.    Burden  on  broker  to  show  payment  or  not  collected 

through  fault  of  owner. 

A  contract  of  agency  to  sell  land  provided  that  if  the  cash 
payment  of  any  sale  was  equal  to  $3.50  per  acre  the  broker 
should  receive  his  commissions  in  full,  but  if  less,  then  the 
broker  should  receive  only  one-half  of  his  commissions,  the  other 
half  to  be  paid  when  the  second  installment  was  collected  from 
the  purchaser.  Held,  in  an  action  to  recover  the  balance  of  com- 
missions on  land  sold,  that,  where  half  the  commissions  had 
been  received,  the  agent  must  show,  either  that  the  second  in- 
stallment had  been  paid  to  the  owner,  or  that  it  had  not  been 
collected  by  reason  of  the  owner's  fault.  Burnet  v.  Edling,  19 
Tex.  Civ.  App.  711,  48  S.  W.  775;  Larson  v.  Burroughs,  116 
N.  Y.  S.  358. 

Sec.  725.    Burden  on  broker  to  prove  agreement  to  sell  was 

made  and  the  customer  able  and  willing  to  perform. 
A  real  estate  broker  employed  to  procure  a  purchaser  of  land 
for  a  fixed  price,  or  any  other  price  below  that  consented  to  by 

the  owner,  has  the  burden  of  proving  that  he  produced  a  person 
with  whom  the  owner  reached  an  agreement  of  sale  or  exchange, 
and  that  such  person  was  able  and  willing  to  carry  out  such 
agreement,  in  order  to  recover  the  commissions  provided  for. 
Hunt  v.  Tuttle,  133  Iowa,  647,  110  N.  W.  1026;  Blackledge  v. 
Davis,  129  Iowa,  591,  105  K  W.  1000;  Waiters  v.  Dancey,  (S.  D. 
Sup.  '09),  122  N.  W.  430;  Williams  v.  Phelps,  171  S.  W.  1100, 
—  Tex.  Civ.  App.  — ;  Low  Moor  Iron  Co.  v.  Jackson,  84  S.  E. 
100,  117  Va.  76;  Joffe  v.  Lederer,  184  N.  Y.  Sup.  585. 

Sec.  725a.    What  a  loan  broker  must  show  to  recover  where 
loan  is  not  consummated. 

A  loan  broker,  where  the  loan  is  not  consummated,  must  at 
least  show  the  procurement  of  a  person  able  and  willing  to  ac-. 


654  AMERICAN  LAW    REAL   ESTATE  AGENCY. 

cept  it  upon  the  precise  terms  stipulated  by  his  principal.   Strauss 
v.  Eastern  Brewing  Co.,  118  N.  Y.  S.  806. 

In  broker's  action  for  compensation,  plaintiff  has  burden  of 
showing  that  defendant  principal  used  information  or.  services 
furnished  by  plaintiff  in  negotiating  a  loan  after  terminating 
plaintiffs  agency.  Johnson  v.  Columbia  Mtge.  &  Trust  Co.,  201 
S.  W.  365,  —  Mo.  App.  — . 

Sec.  726.    On  accepted  contract  burden  of  proof  on  owner  to 
show  irresponsibility  of  buyer. 

Where  the  principal  accepts  the  purchaser  found  by  his 
broker,  without  questioning  his  ability  to  perform,  and  the 
sale  fails  of  consummation  by  the  purchaser's  own  fault  or 
failure  to  make  good  his  offer,  the  burden  is  on  the  principal 
in  order  to  defeat  the  broker's  right  to  compensation,  to  show 
the  purchaser's  want  of  ability.  Dodson  v.  Milliken,  27  App. 
(D.  C.)  500;  Phinizy  v.  Bush,  129  Ga.  479,  59  S.  E.  259;  (In 
many  States  owner  bound  by  acceptance.)  Compare  Sees. 
694,  842. 

Sec.  727.    Broker  must  prove  performance  within  a  reasonable 

time. 

A  broker  employed  to  procure  a  purchaser  of  real  estate 
under  a  contract  which  does  not  specify  the  time  for  the  per- 
formance of  the  contract  must,  in  an  action  for  his  commissions, 
prove  that  he  performed  it  within  a  reasonable  time.  Harris 
v.  Moore,  134  Iowa  704,  112  N.  W.  1.63 ;  Hurst  v.  Williams,  31 
Ky.  L.  R.  658,  102  S.  W.  1176.  On  acceptance  immaterial. 
Moore  v.  Boehm,  91  N.  Y.  S.  125,  45  Misc.  622. 

Sec.  728.    Burden  of  proof  on  defendant  when  he  alleges  plain- 
tiff was  agent  of  tenant. 

Where,  in  an  action  by  a  broker  for  commissions  for  procur- 
ing a  tenant  for  defendant,  the  defense  was  that  the  broker  was 
the  agent  of  the  tenant  procured,  the  burden  of  proof  was 
on  defendant  to  show  the  existence  of  such  agency.  Ballentine 
v.  Mercer,  130  Mo.  App.  605,  109  S.  W.  1037. 


PLEADINGS,  PBACTICE,  ETC.  655 

Sec.  728a.  Vendee  suing  to  recover  money  paid  vendor's  agent 
on  unauthorized  contract  has  burden  of  proving  vendor's 
ratification. 

A  vendee  suing  the  land  owner  to  recover  money  paid  his 
agent  on  an  unauthorized  contract  of  sale  made  by  the  latter, 
has  the  burden  of  proving  ratification  by  the  land  owner.  Ed- 
wards v.  Davidson  (Tex.  Civ.  App.  '04),  79  S.  W.  48. 

Sec.  728b.  Burden  of  proof  as  to  double  payment  of  commis- 
sions. 

Where,  in  an  action  to  recover  an  alleged  double  payment 
of  a  real  estate  agent's  commissions,  defendants  claimed  that  the 
second  payment  was  for  other  services,  and  that  the  receipt 
executed  therefor  had  been  given  to  plaintiff's  agent,  who  had 
knowledge  of  the  previous  payment  of  the  commissions,  an 
admission  of  such  prior  payment,  and  the  execution  of  such 
receipt  did  not  shift  the  burden  of  proof  to  the  defendants  to 
show  that  the  second  payment  was  not  for  services  previously 
paid  for.  Phelps  v.  Miller  (Tex.  Civ.  App.  '04),  83  S.  W.  218. 

Sec.  728c.    Burden  on  broker  to  show  defect  in  owner's  title 

which  defeated  sale. 

Where  a  broker  procured  one  who  was  willing  to  purchase 
the  land  of  his  principal  but  for  a  defect  in  the  title,  in  an 
action  to  recover  his  commissions,  the  burden  is  on  the  broker 
to  show  that  such  defect  existed,  no  binding  contract  of  purchase 
having  been  made.  Brackenridge  v.  Claridge,  91  Tex.  527,  44 
S.  W.  819. 

Sec.  728d.    Burden  of  proof,  and  upon  whom  it  falls. 

(1)  A  broker  engaged  to  obtain  a  purchaser,  who  claims  a 
commission,  though  the  sale  was  prevented  because  of  an  alleged 
defect  of  title,  has  the  burden  of  proving  that  his  principal  failed 
to  discharge  an  obligation  resting  upon  him  with  reference  to 
making  the  title  good.    Reeder  v.  Epps,  166  S.  W.  747,  112  Ark. 
506. 

(2)  Where,  in  a  broker's  action  for  commission,  plaintiff  relies, 
under  authority  of  Civil  Code,  Sec.  1559,  upon  a  contract  made 


656  AMERICAN  LAW  BEAL  ESTATE  AGENCY. 

for  his  benefit,  and  not  upon  the  employment,  and  where  defend- 
ant pleads  employment  as  a  basis  of  the  defense,  resting  on  the 
confidential  relations,  the  burden  is  on  defendant  to  prove  such 
employment.  Konda  v.  Fay,  136  P.  514,  22  Cal.  App.  722. 

(3)  In  a  suit  for  commissions  on  sale  of  real  estate,  burden  is 
on  plaintiff  to  show  a  definite  offer  to  sell  by  defendant  and  ac- 
ceptance by  the  prospective  purchaser,  and  that  defendant,  with- 
out just  reasons,  refused  to  convey.     Hauch  v.  Bonnabel,  64  S. 
795,  134  La.  847. 

(4)  Where  an  owner,  after  giving  to  a  broker  an  exclusive 
agency  for  sixty  days  to  sell  real  estate,  at  a  specified  sum,  for 
the  usual  commission,  sold  the  property  before  the   expiration 
of  the  sixty  days,  for  a  less  sum,  to  one  not  procured  by  the 
broker,  the  commission  contracted  for  was  prima  facie  the  dam- 
ages to  the  broker,  treating  the  contract  as  performed,  and  the 
owner  had  the  burden  of  showing,  to  reduce  the  damages,  that 
in  all  reasonable  probability  the  broker  could  not  have  procured 
a  purchaser  within  the  time   specified  for  the   specified  price. 
Norman  v.  Vanderiberg,  138  S.  W.  47,  157  Mo.  App.  488. 

(5)  Where  a  sale  negotiated  by  brokers  failed  because  of  the 
outstanding  liens  on  the  property,  the  burden  was  on  the  own- 
ers,  in  a  suit  for  commissions,  to  show  that  the  brokers  had 
knowledge   of   the    situation    when   they   procured    a    purchaser. 
Willson  v.  Crawford,  130  S.  W.  227,  61  Tex.  Civ.  App.  580. 

(6)  A  broker,  to  recover  the  reasonable  value  of  services  in 
procuring  a  customer  to  whom  the  owner  sold  at  a  price  less  than 
that  fixed  in  the  contract  of  employment,  must  show  the  reason- 
able value  of  the  services.    Martin  v.  Jeffries,  172  S.  W.  148,  — 
Tex.  Civ.  App.  — . 

(7)  Owner  employing  a  broker  to  procure  a  purchaser  has  the 
burden  of  proving  the  fraud  of  the  broker,  to  defeat  an  action 
by  the  broker  on  a  note  for  his  commissions.    Martineau  v.  Han- 
son, 155  P.  432,  47  Utah,  549. 

(8)  The  rule  requiring  a  broker  suing  for  a  commission  for 
procuring  a  purchaser  to  show  that  the  purchaser  was  ready,  able 
and  willing  to  buy  on  terms  satisfactory  to  the  owner,  applies 
only  where  owner  has  refused  to  consummate  the  sale,  and  not 
where  the  property  has  been  actually  sold  on  satisfactory  terms. 
Weisels-Oerhart  Real  Estate  Co.  v.  Epstein,  137  S.  W.  326,  157 
Mo.  App.  101. 


PLEADINGS,  PBACTICE,  ETC.  657 

(9)  Party  seeking  to  defeat  broker's  right  to  commission  on 
contract  of  exchange  of  lands  incumbered  by  a  mortgage,  on  the 
ground  that  the  contract  was  invalid,  was  bound  to  show  that 
purchase  was  made  by  the  broker  with  this  permanent  capital 
or  deposits.     Genatt  v.  Robinson,  165  N.  Y.  Sup.  464. 

(10)  In  a  broker's  suit  for  commissions  on  exchange  of  land, 
in  which  intervenors  claimed  a  portion  of  commissions,  and  there 
were  no  material  issues  between  plaintiff  and  defendant,  inter- 
venors had  burden  of  proof  to  establish  their  allegations,   that 
there  was  a  universal  custom,  where  more  than  two  brokers  are 
interested,  to  pool  commissions,  and  that  they  had  such  agree- 
ment with  plaintiff.     Knight  Realty  Co.  v.  Williams,  193  S.  W. 
168,  —  Tex.  Civ.  App.  — . 

(11)  In  an  action  for  damages  for  breach  of  contract  in  selling 
land,    where    plaintiffs    relied    on    ratification    by    defendant    of 
agent's  contract  to  sell,  burden  was  on  them  to  prove  ratification. 
Crumpacker  v.  Jeffrey,  115  N.  E.  62,  —  Ind.  App.  — . 

(12)  Plaintiff   has   burden   of   proving   consideration   for    de- 
fendant's written   agreement  to  pay  a  certain  sum  for  services 
connected  with  the  sale  of  certain  property,  payment  to  be  made 
upon  completion  of  sale,  although  defendant  had  made  partial 
payment,  and  had  sold  property,  though  not  through  plaintiff's 
efforts.    Dennis  v.  Vinton,  165  N.  W.  603,  —  Mich.  Sup.  — . 

(13)  In   broker's   action   for   commission,   burden   of   proving 
terms  of  brokerage  contract  was  upon  broker,  principal  not  being 
required  to  prove  any  part  thereof.    Jackson  v.  Kohler,  124  N.  E. 
650,  —  111.  Sup.  — . 

(14)  Where  a  corporation  sued  a  real  estate  agent  which  it 
had  engaged  to  procure  a  factory  site,  on  the  ground  that,  despite 
the  fiduciary  relations,  he  made  a  secret  profit,  the  burden  of  es- 
tablishing the  fiduciary  relations  is  on  the  corporation.     H.  J. 
Jaeger  Co.  v.  Hannan,  108  A.  1,  —  N.  J.  Eq.  — . 

(15)  The  burden  of  proof  is  upon  a  broker,  suing  to  recover 
commissions,  to  prove  that  his  services  were  rendered  under  em- 
ployment by  the  principal,  or  that  the  latter  accepted  his  agency 
and  his  acts,  under  circumstances  showing  that  he  knew  the  ser- 
vices were  being  rendered  on  his  account,  and  while  the  agent 
was  relying  on  the  principal's  obligation  to  pay  for  them.     Suter 
v.  Farmers'  Fertilizer  Co.,  126  N.  E.  304,  100  Ohio,  403. 


CHAPTER  IX. 
EVIDENCE— ADMISSIBLE. 

Sec.   729.    Oral  agreement,   where  correspondence   does  not 
cover  compensation. 

Where  the  correspondence  by  which  plaintiffs  were  employed 
to  sell  land  does  not  cover  the  question  of  compensation,  a 
former  oral  agreement  as  to  compensation  to  be  charged  may 
be  shown,  but  where  the  contract  by  correspondence  refers  to 
a  sale  of  lots  at  specified  prices  and  terms,  evidence  of  a  former 
oral  agreement  that  the  sale  should  be  made  subject  to'  defend- 
ant's approval,  and  that  the  deed  should  contain  certain  condi- 
tions, is  inadmissible.  Sayre  v.  Wilson,  86  Ala.  151,  5  S.  157. 

Sec.  729a.    Contract  of  employment  admissible  to  prove  value 
of  services  rendered  by  broker. 

Where  a  broker  introduces  a  prospective  purchaser  to  the 
seller,  and  the  latter  undertakes  to  conduct  the  negotiations  and 
finally  sells  the  property  for  less  than  the  terms  named  in  the 
contract  of  employment,  the  original  contract  is  admissible,  in 
an  action  by  the  broker,  as  a  basis  for  the  ascertainment  of 
reasonable  compensation.  Smith  v.  Sharp  (Ala.  Sup.  '09),  50 
S.  381. 

Sec.  730.    Writing  reciting  payment  of  consideration  as  tend- 
ing to  prove  broker's  services. 

A  written  agreement  entered  into  by  plaintiffs'  customer  for 
the  purchase  of  property  and  reciting  the  payment  of  part  of 
the  stipulated  price  to  plaintiffs,  is  admissible  as  tending  to 
show  that  plaintiffs  rendered  services  in  effecting  a  sale  of  the 
property.  Rothschild  v.  Burritt,  47  Minn.  28,  49  N.  W.  393; 
Tebo  v.  Mitchell,  5  Pennewill  (Del.),  356,  63  A.  327;  Carl  v. 
Wolcott,  156  S.  W.  334,  —  Tex.  Civ.  App.  — . 
658 


PLEADINGS,  PRACTICE,  ETC.  659 

Sec.  730a.    Written  opinion  of  customer's  attorney  admissible 
to  show  defects  in  title  in  broker's  suit  for  commissions. 

For  the  purpose  of  showing  what  specifications  of  supposed 
infirmities  in  the  title  were  directed  to  the  principal's  attention, 
the  written  opinion  of  the  customer's  attorney  as  to  the  title  is 
admissible  in  a  broker's  action  for  commissions.  Wood  &  Tatum 
v.  Easier,  173  P.  1109,  —  Gal.  App.  — . 

Sec.  731.    Deed  of  principal  to  show  ratification  of  broker's 
contract. 

A  deed  executed  by  the  principal  to  the  purchaser  after  the 
commencement  of  the  suit,  is  admissible  to  show  the  principal's 
ratification  of  the  broker's  contract.  Gelott  v.  Ridge,  117  Mo. 
553,  23  S.  W.  882. 

Sec.  732.    Written  contract  of  sale  to  show  sale  was  made. 

The  written  contract  of  sale  executed  by  plaintiffs  as  de- 
fendant's agents  is  admissible  to  show  that  the  sale  was  made, 
although  the  agents  had  no  written  authority  to  make  it,  and 
it  was  afterwards  repudiated  by  the  defendant.  Monroe  v. 
Snow,  131  HI.  126,  23  N.  E.  401 :  Johnson  v.  Buchanan  (Tex. 
Civ.  App.  '09),  116  S.  W.  875;  Grosse  v.  Cooleu,  43  Minn.  188, 
45  N.  W.  15 ;  Cutter  v.  Pearsoll  146  Cal.  690,  81  P.  25 ;  Snyder 
v.  Fidler,  125  Towa,  378,  101  N.  W.  150. 

Sec.  733.    Newspaper  advertisement  to  show  efforts  of  brokers 
to  sell  the  property. 

A  newspaper  advertisement  published  by  plaintiffs  is  admis- 
sible as  showing  what  they  did  in  performance  of  their  duty 
under  the  contract  to  sell  the  property.  Decker  v.  Widdicomb, 
137  Mich.  331,  100  N.  W.  573. 

Sec.  733a.    Broker  may  testify  he  advertised  lands  in  news- 
paper. 

A  real  estate  broker  suing  for  commissions  may  testify  that 
he  advertised  the  land  in  a  certain  newspaper,  no  effort  beins: 
made  to  prove  in  this  manner  the  terms  or  contents  of  the  ad- 
vertisement. Tarborough  v.  Creager  (Tex.  Civ.  App.  '03),  77 
S.  W.  645. 


660  AMERICAN  LAW    BEAL   ESTATE   AGENCY. 

Sec.  734.    Memoranda  made  by  the  parties. 

A  memorandum  signed  by  the  parties  to  proposed  sale  is 
admissible  in  evidence.  Folinsbee  v.  Sawyer,  28  N.  Y.  S.  698, 
8  Misc.  370. 

Sec.  734a.    Contract  and  release  admissible  in  evidence. 

In  an  action  for  broker 's  commissions  for  procuring  a  tenant 
for  premises,  wherein  defendant  claimed  plaintiff  agreed  to 
forego  the  payment  of  his  commissions  until  payment  of  the 
rent  by  the  tenant,  the  complaint,  in  an  action  by  defendant 
against  the  tenant  for  specific  performance  of  the  contract  pro- 
cured by  plaintiff,  and  the  release  subsequently  executed  to 
the  tenant  are  admissible,  not  only  as  an  admission  of  the  con- 
tract, but  to  show  that  there  was  an  agreement  by  plaintiff  to 
postpone  payment  of  commissions;  defendant  had  voluntarily 
put  it  out  of  his  power  to  collect  such  rent.  Benedict  v.  Pincus, 
119  N.  Y.  S.  266. 

Sec.  735.    Conversations,  when  pertinent  to  the  issues. 

In  an  action  for  commissions  on  a  sale  of  real  estate,  evidence 
of  negotiations  between  plaintiff  and  the  customer  afterward 
communicated  to  defendant  is  admissible.  Luhn  v.  Fortran 
(Tex.  Civ.  App.  '09),  115  S.  W.  667;  Huff  v.  Cole,  127  Mich. 
351,  86  N.  W.  835;  Kurinsky  v.  Lynch  (Mass.  '09),  87  N.  E. 
70;  Benedict  v.  Dakin  (111.  Sup.  '09),  90  N.  E.  712;  Leonard 
v.  Roberts,  20  Colo.  88,  36  P.  880 ;  White  v.  Collins,  90  Minn. 
165,  95  N.  W.  765 ;  Woolley  v.  Lowenstein,  31  N.  Y.  S.  570,  83 
Hun,  155 ;  Brumfield  v.  Potter,  etc.,  Mfg.  Co.,  23  N.  Y.  S.  1025, 
*  M.  194;  Richardson  v.  Babcock,  119  Wis.  141,  96  N.  W.  554; 
'McDonald  v.  Smith,  99  Minn.,  42,  108  N.  W.  291;  Fortran  v. 
Stevens,  113  S.  W.  312  (Tex.  Civ.  App.  '08) ;  Smith  v.  Lyons 
Salt  Co.,  177  S.  W.  1057,  —  Mo.  App.  — ;  Bounds  v.  Victoria 
Hotel  Co.,  184  111.  App.  500;  Jackson  v.  Kohler,  124  N.  E.  650, 
—  111.  Sup.  — ;  Fisher  v.  Skidmore  Land  Co.,  179  N.  W.  152,  — 
Iowa  Sup.  — . 

Sec.  736.    Conversations  after  the  sale  are  not  admissible. 

Conversations  between  a  broker  and  the  purchaser  after  the 
sale  are  inadmissible.  McDonald  v.  Ortman,  98  Mich.  40,  56 


PLEADINGS,  PRACTICE,  ETC.  661 

N.  W.  1055;  also,  betwen  plaintiff  and  proposed  purchaser,  in 
the  absence  of  defendant.  Rutherford  v.  Selover,  87  Minn.  495, 
92  N.  W.  413.  Likewise,  between  buyer  and  seller  before  and 
after  the  execution  of  the  contract  of  sale,  it  affects  the  broker. 
Veazie  v.  Parker,  72  Me.  443. 

Sec.  737.    Letter  of  broker  to  purchaser's  agent  to  prove  efforts 

to  make  a  sale. 

In  an  action  by  a  broker  to  recover  from  the  seller  of  real 
estate,  commission  for  procuring  a  purchaser,  the  question  was 
whether  a  letter  written  by  the  broker  to  the  purchaser's  agent 
Was  admissible  to  prove  his  efforts  to  make  a  sale;  and  com- 
petent as  part  of  the  res  gestae  to  show  what  the  broker  did  un- 
der his  employment  towards  procuring  a  purchaser,  and  was  not 
rendered  incompetent  because  it  incidentally  corroborated  the 
testimony  of  the  broker  as  to  the  date  of  the  interview  between 
him  and  the  defendant.  Carroll  v.  Pettit,  22  N.  Y.  S.  260,  67 
Hun,  418;  Stiewel  v.  Lally,  89  Ark.  195,  115  S.  W.  1134;  Ross 
v.  Mayer,  163  S.  W.  880,  178  Mo.  App.  431. 

Bee.   737a.    Evidence  admissible  showing   communication  to 
another  agent  of  plaintiff's  employment  by  the  seller. 

In  an  action  for  commissions  claimed  to  have  been  earned 
by  purchasing  land  for  defendant,  where  defendant  claimed 
that  plaintiff  received  a  commission  from  the  seller  of  the  tract 
in  violation  of  his  relations  as  agent,  which  commission  plaintiff 
claimed  was  received  for  defendant's  benefit  and  by  his  au- 
thority, evidence  was  admissible  of  the  employment  and  the 
extent  of  the  authority  of  another  employed  by  defendant  to 
assist  the  plaintiff  in  securing  the  option,  who,  by  plaintiff's 
direction,  communicated  to  defendant  the  proposed  terms  for 
the  purchase  of  the  tract  in  question,  but  the  compensation  he 
was  to  receive  from  defendant  was  immaterial.  Mahon  v.  Ran- 
Tcin  (Ore.  Sup.  '09),  102  P.  608;  Long-Lewis  Hardware  Co.  v. 
Swing,  62  S.  341,  8  Ala.  App.  657. 

Sec.  738.    Correspondence  to  establish  agency. 

On  the  issue  as  to  whether  a  loan  broker  was  the  agent  of  de- 
fendant in  negotiating  a  loan  for  him,  or  the  agent  of  the  plain- 


662  AMERICAN  LAW    REAL   ESTATE   AGENCY. 

tiff  company  which  made  the  loan,  correspondence  between  the 
broker  and  the  plaintiff's  manager  relative  to  defendant's  loan 
and  a  requested  extension  thereof,  and  concerning  other  loans 
made  by  plaintiff  through  the  broker,  is  admissible  in  evidence, 
and  the  question  is  for  the  jury.  Jesson  v.  Texas  Land  &  Loan 
Co.,  3  Tex.  Civ.  App.  25,  21  S.  W.  624;  Wefel  v.  Stillman  (151 
Ala.  249),  44  S.  203;  Wallick  v.  Lynch  (Iowa,  '06),  106  N.  W. 
617;  Veale  v.  Greene,  105  Mo.  App.  182,  79  S.  W.  731;  McCombs 
v.  Moss,  181  S.  W.  907,  121  Ark.  533 ;  Sills  v.  Burge,  124  S.  W. 
605,  141  Mo.  App.  148;  Coffman  v.  Dyas  Realty  Co.,  159  S.  W. 
842,  176  Mo.  App.  692 ;  Vritain  v.  Rice,  204  S.  W.  254,  —  Tex. 
Civ.  App.  — . 

Sec.  739.    Evidence  to  show  plaintiff's  employment  by  defend- 
ant's agent. 

In  an  action  for  services  rendered  by  plaintiff  in  purchasing 
property  for  defendant,  testimony  that  defendant's  agent  solic- 
ited witness  to  go  to  plaintiff  and  induced  plaintiff  to  negotiate 
for  the  purchase  of  the  property,  and  that  witness  accordingly 
went  to  plaintiff  and  represented  to  him  that  defendant's  agent 
was  authorized  to  employ  him  on  defendant's  behalf,  was 
admissible  to  show  plaintiff's  employment  by  defendant's  agent. 
8t.  L.  S.  W.  R.  Co.  of  Texas  v.  Irvine  (Tex.  Civ.  App.  '05),  89 
S.  W.  428 

Sec.  740.    Any  competent  evidence  to  prove  or  to  disprove 

plaintiff's  employment. 

Where  defendant  denies  that  he  agreed  to  pay  plaintiff  a 
commission  for  selling  his  property  at  a  certain  price  as  claimed 
by  plaintiff,  evidence  of  one  to  whom  defendant  had  given  an 
option  prior  to  the  alleged  agreement  that  he  was  able  and 
willing  to  pay  said  price  without  any  deductions  therefrom,  was 
competent  to  disprove  the  contract.  Dexter  v.  Collins,  21  Colo. 
455,  42  P.  664 ;  Border  v.  Isherwood,  120  Iowa,  677,  94  N.  W. 
1128 ;  McDermott  v.  Mahoney,  119  Iowa,  470,  115  N.  W.  32,  130 
Iowa,  200;  Lewis  v.  Susmilch,  130  Iowa,  203,  106  N.  W.  624; 
Jennings  v.  Eooney,  183  Mass.  577,  67  N.  E.  665;  Childs  v. 
Ptomey,  17  Mont.  502,  43  P.  714;  Jackson  v.  Higgins,  70  N. 


PLEADINGS,  PRACTICE,  ETC.  663 

H.  637,  49  A.  574;  Miller  v.  Irish,  3  Hun  (N".  Y.),  352,  67  Barb. 
256,  5  Thomps.  &  C.  707,  affirmed  63  N.  Y.  652;  Hodgkins  v. 
Mead,  8  N".  Y.  S.  854;  Dayton  v.  Eyerson,  13  How.  Pr.  (N. 
Y.)  281;  Bertelson  v.  Hoffman,  35  Wash.  459,  77  P.  801;  Going 
v.  Cook,  1  Wash,  224,  23  P.  412 ;  Indiana  Fruit  Co.  v.  Sandlin, 
125  Ga.  222,  54  S.  E.  65;  Harvey  v.  Lindsay,  117  Mich.  267, 
75  N.  W.  627;  Williams  v.  Nelson,  145  P.  39,  45  Utah,  255; 
Davis  v.  Keasy,  93  A.  335,  247  Pa.  303;  Loving  v.  Kane,  180 
111.  App.  614;  Morrison  v.  Franck,  117  P.  308,  59  Or.  429; 
Justy  v.  Erro,  117  P.  575,  16  Cal.  App.  519;  Riggins  v.  Sass,  143 
S.  W.  689,  —  Tex.  Civ.  App.  — ;  Silberkraus  v.  Winnie,  142  N. 
Y.  Sup.  887,  158  App.  Div.  50;  Andrew  v.  Mace,  194  S.  W.  598, 
—  Tex.  Civ.  App.  — ;  Smith  v.  Sharp  R.  E.  Co.,  77  S.  40,  200 
Ala.  666;  Cooper  v.  Newsom,  224  S.  W.  568,  —  Tex.  Civ.  App.—. 

Sec.  740a.    Evidence  admissible  to  show  transaction  occurred 

within  the  period  alleged  by  plaintiff. 

In  an  action  for  commissions  for  a  sale  of  land,  it  was  not 
error  to  admit  evidence  as  to  the  authorization  that  it  dated 
prior  to  December  8,  3905,  where  the  amended  complaint  sets 
out  that  in  June,  1904,  plaintiff  was  employed  by  defendants 
to  procure  purchasers  for  the  land,  and  that  such  work  was 
continued  until  April,  1906,  when  the  lands  were  sold,  for  the 
evidence  objected  to  goes  to  prove  the  transaction  between  June, 
1904,  and  December  8,  1905.  Ross  v.  Carr  (N.  M.  Sup.  '09.), 
103  P.  307. 

Sec.  740b.    Real  contract  admissible  to  show  difference  from 

that  sued  on. 

The  real  contract  is  admissible  in  evidence  to  show  difference 
from  that  sued  on.  Tracey  Land  Co.  v.  Land  etc.  Co.,  131  Iowa 
40,  107  N.  W.  1029. 

Sec.  741.    Evidence  to  prove  defendant's  agent  had  authority 

to  employ  a  broker. 

Where  plaintiff  claims  to  have  been  employed  as  broker  by 
the  husband  as  agent  of  defendant,  any  competent  evidence  is 


664  AMERICAN  LAW    ttTCAT.   ESTATE  AGENCY. 

admissible  which  tends  to  show  that  the  husband  had  authority 
to  employ  a  broker  on  behalf  of  his  wife.  Eichberg  v.  Ware,  92 
Ga.  508,  17  S.  B.  770;  Hall  v.  Grace,  179  Mass.  400,  60  N. 
E.  932;  Darling  v.  Howe,  14  N.  Y.  S.  561,  60  Hun,  578. 

Sec.  742.    Evidence  as  to  the  value  of  property,  on  issue  as  to 

good  faith  of  broker  in  accepting  employment. 
In  an  action  against  their  principal  for  damages  for  the  loss 
of  commissions  caused  by  the  refusal  to  accept  the  deed  and 
carry  out  the  contract  \vhere  the  defense  was  want  of  mental 
capacity  to  contract,  evidence  of  the  actual  value  of  the  prop- 
erty is  competent  only  when  offered  to  show  that  the  price 
offered  was  so  exorbitant  as  to  be  inconsistent  with  good  faith 
on  the  part  of  the  broker  in  undertaking  to  contract  for  the 
purchase  at  the  price  authorized.  Cavender  v.  Waddingham, 
5  Mo.  App.  457. 

Sec.  743.    Evidence  to  prove  or  to  disprove  plaintiff  the  pro- 
curing cause  of  the  transaction. 

In  an  action  by  a  broker  for  compensation,  the  defense  being 
a  general  denial,  any  competent  evidence  is  admissible  in  behalf 
of  plaintiff  or  defendant  which  tends  to  prove  or  to  disprove  that 
plaintiff  was  the  procuring  cause  of  the  transaction  into  which 
the  defendant  and  the  customer  entered ;  if  any  act  of  the  broker 
in  pursuance  of  his  authority  to  find  a  purchaser  is  the  initiatory 
step  that  leads  to  the  sale  consummated,  the  owner  must 
pay  the  commission.  Hoadley  v.  Danbury  Sav.  Bk.,  71  Conn. 
599,  42  A.  667,  44  L.  R.  A.  321;  Doonan  v.  Ives,  73  Ga.  295; 
Smiley  v.  Bradley,  18  Colo.  App.  191,  70  P.  696 ;  Adams  v.  Me- 
Laughlin,  159  Ind.  23,  64  N.  E.  462;  Hunn  v.  Ashton,  121  Iowa, 
265,  96  N.  W.  745;  Saivyer  v.  Bowman,  91  Iowa,  717,  59  N. 
W.  27 ;  Newton  v.  Eiichie,  75  Iowa,  91,  39  N.  W.  209 ;  Creager 
v.  Johnson,  114  Iowa,  249,  86  N.  W.  275;  Brooks  v.  Leathers, 
112  Mich,  463,  70  N.  W.  1099 ;  Kerr  v.  Cusenbnry,  69  Mo.  App. 
221;  Willard  v.  Wright  (Mass.  Sup.  '09),  89  N.  E.  559;  Childs 
v.  Ptomey,  17  Mont.  502,  43  P.  714;  Waters  v.  Rafalsky,  119 
N.  Y.  S.  271 ;  Lockhart  v.  Hamlin,  190  N.  Y.  132,  82  N.  E.  1094 ; 
Doran  v.  Bussard,  45  N.  Y.  S.  387,  18  App.  Div.  36 ;  Goldsmith 
v.  Cook,  14  N.  Y.  S.  878,  Rev.  13  N.  Y.  S.  578 ;  Bowser  v.  Field 


PLEADINGS,  PBACTICE,  ETC.  665 

(Tex.  Civ.  App.  '91),  17  S.  W.  45;  Larsen  v.  Thoma  (Iowa  Sup. 
'09),  121  N.  W.  1059;  Hughes  &  Thurman  v.  Dodd,  146  S.  W. 
446,  164  Mo.  App.  454;  Obets  v.  Maney,  146  S.  W.  351,  —  Tex. 
Civ.  App.  — ;  Pope  v.  Ansley  Realty  Co.,  135  S.  W.  1103,  judg. 
rev.,  151  S.  W.  525,  105  Tex.  440;  Davis  v.  Clausen,  57  S.  79,  2 
Ala.  App.  378;  Cameron  v.  Powers,  57  S.  888,  63  Fla.  108;  Fre- 
del  v.  Boldinger,  138  N.  Y.  Sup.  147;  OwcharoffsJcy  v.  Trustees 
of  Welch  Gal  Me.  Church,  148  N.  Y.  Sup.  138,  86  Misc.  Rep. 
36;  Naulty  v.  Gorham  Mfg.  Co.,  164  N".  Y.  Sup.  328,  178  App. 
Div.  36;  Kamp  v.  Madison,  161  N.  W.  809,  --  S.  D.  Sup.  — ; 
Ford  v.  Cole,  195  S.  W.  661,  —  Tex.  Civ.  App.  — ;  Foote  v. 
Cohen,  199  111.  App.  462;  McLaughlin  &  Co.  v.  Southern  Hotel 
Co.,  177  N".  Y.  Sup.  323;  Karr  v.  Moffett,  187  P.  683,  den.  re., 
185  P.  890,  —  Kan.  Sup.  — . 

Sec.  743a.    Proper  to  show  purchaser's  state  of  mind  regard- 
ing the  purchase. 

In  determining  the  question  which  one  of  two  brokers  effected 
a  sale,  it  is  proper  to  show  by  the  purchaser  his  state  of  mind 
regarding  the  purchase  after  he  had  left  the  broker  claiming  the 
commission.  McGuire  v.  Carlson,  61  111.  App.  295;  Begelin  v. 

Lothgren,  207  111.  App.  409. 
• 
Sec.  744.    Evidence  to  prove  or  to  disprove  customer's  ability, 

readiness  and  willingness  to  buy. 

Where  the  owner  of  land  refused  to  complete  a  sale  to  a  pur- 
chaser introduced  by  a  broker,  evidence  of  the  prospective  pur- 
chaser in  an  action  by  the  broker  for  commissions  that  at  the 
time  he  was  introduced  to  the  land  owner  he  was  ready  and 
willing  to  buy  the  land  on  the  terms  mentioned  in  the  contract, 
and  so  stated  to  the  owner,  was  admissible.  McDermott  v.  Ma- 
honey,  119  Iowa  470,  affirmed  115  N.  W.  32,  139  Iowa  292; 
Walsh  v.  Gay,  63  N.  Y.  S.  543 ;  49  App.  Div.  50 ;  Kirchner  v. 
Reichardt,  27  Misc.  530,  58  N.  Y.  S.  314;  Joffe  v.  Nagel,  114 
N.  Y.  S.  905;  Hutchinson  v.  Plant,  105  N.  E.  1017,  218  Mass. 
148 ;  Smith  v.  Sharp  R.  E.  Co.,  77  S.  40,  200  Ala.  666 ;  Columbia 
Realty  &  Inv.  Co.  v.  Alameda  Land  Co.,  168  P.  64,  re.  den.,  Id. 
440.  —  Or.  Sup.  — ;  Fisher  v.  Slcidmore  Land  Co.,  179  N.  W. 


666  AMERICAN  LAW  REAL   ESTATE   AGENCY. 

152,  —  Iowa  Sup.  — ;  Cooper  v.  Newsom,  224  S.  W.  568,  —  Tex. 
Civ.  App.  — . 

Sec.  745.    If  the  contract  omits  compensation  evidence  of  the 
reasonable  value  of  broker's  services. 

In  an  action  for  services  rendered  by  real  estate  brokers  in 
procuring  a  purchaser  for  defendant's  land,  where  there  were 
no  written  pleadings  in  the  trial  court  and  no  testimony  of 
any  definite  contract,  evidence  of  the  value  of  the  service  based 
on  the  price  for  which  the  land  sold  was  properly  admitted  and 
a  judgment  entered  upon  that  basis  was  proper.  Brand  v.  Mer- 
ritt,  15  Colo.  286,  25  P.  175;  Oeiger  v.  Riser  (Colo.  Sup.  '10), 
107  P.  267;  Glover  v.  Henderson,  120  Mo.  367,  25  S.  W.  175; 
Bickart  v.  Hoffman,  19  1ST.  Y.  S.  472;  Carruthers  v.  Towne,  86 
Iowa,  318,  53  N.  W.  240;  Knight  v.  Knight,  142  111.  App.  62; 
Weil  v.  Schwartz  (Tex.  Civ.  App.  '09),  120  S.  W.  1039;  Fleming 
v.  Wells  (Colo.  Sup.  '09),  101  P.  66;  W.  B.  McGerry  &  Co.  v. 
Marsicano,  137  P.  40,  23  Cal.  App.  55;  Baker  v.  Barker,  137  N". 
W.  7,  118  Minn.  419;  Stevens  v.  Wis.  Farm  Loan  Co.,  145  K  W. 
173,  124  Minn.  421 ;  Toland  v.  Williams  &  Wiley,  129  S.  W.  392, 
-  Tex.  Civ.  App.  — ;  Bond  v.  Hancock,  163  S.  W.  660,  —  Tex. 
Civ.  App.  — ;  McEwan  v.  Vollentine,  170  P.  490,  --  Okl.  Sup. 
— ;  Regelin  v.  Lothgren,  207  111.  App.  409;  Kappes  v.  Bacon,  209 
111.  App.  290;  Stockberger  v.  Zane,  125  N.  E.  65,  —  Ind.  App.  — . 

Sec.   746.    Evidence  to  prove  or  to   disprove   existence   of 
custom. 

Where  a  principal  claimed  that  its  broker  had  been  notified 
of  its  custom  to  give  only  quit-claim  deeds  to  purchasers  of 
its  real  estate,  evidence  to  show  that  after  its  refusal  to  give 
a  deed  with  warranty,  it  offered  to  give  such  a  deed  if  an 
increased  price  was  paid,  was  admissible  to  show  that  no  such 
custom  existed.  Beach  v.  Traveler's  Ins.  Co.,  73  Conn.  118, 
46  A.  867. 

Sec.  747.    Evidence  of  option  holder  to  disprove  agency. 

Where  defendant  denied  that  he  agreed  to  pay  plaintiff  a 
commission  for  selling  his  property  at  a  certain  price,  as  claimed 
by  plaintiff,  evidence  of  one  to  whom  defendant  had  given  an 


PLEADINGS,  PRACTICE,  ETC.  667 

option  price  to  the  alleged  agreement,  that  he  was  able  and 
willing  to  pay  such  price,  without  any  deduction  therefrom, 
was  competent  to  disprove  the  agency.  Dexter  v.  Collins,  21 
Colo.  455,  42  P.  664. 

Sec.  748.    Entry  in  book  of  price  agreed  on,  made  in  defend- 
ant's presence. 

In  an  action  by  real  estate  brokers  for  commissions  on  a  sale, 
where  the  question  in  dispute  is  whether  plaintiffs  had  authority 
to  sell  at  the  price  named,  an  entry  in  plaintiff's  books  of  the 
price  agreed  on,  made  by  them  in  defendant's  presence  and  at 
the  time  of  their  conversation  with  him,  is  admissible  in  evi- 
dence, though  written  in  cipher.  Monroe  v.  Snow,  131  111. 
126,  23  N.  W.  401. 

Sec.  749.    Oral  evidence  to  show  that  written  agreement  was 
obtained  by  fraud. 

The  rule  of  law  forbidding  the  admission  of  evidence  of  an 
oral  agreement  made  prior  to  or  contemporaneously  with  the 
written  agreement  in  question,  does  not  preclude  the  admission 
of  evidence  tending  to  show  that  the  written  agreement  was 
fraudulently  obtained,  or  that  it  resulted  from  accident  or 
mutual  mistake.  Culp  v.  Powell,  68  Mo.  App.  238 

Sec.  749a.    Parol  evidence  admissible  to  rebut  that  of  plain- 
tiff. 

In  an  action  for  a  real  estate  broker's  commissions,  parol  evi- 
dence that  the  written  agreement  of  prospective  purchasers 
with  the  owner  was  not  finally  binding,  and  that  after  it  was 
revoked,  plaintiff  sought  to  procure  new  purchasers,  is  admis- 
sible on  behalf  of  such  owner  to  rebut  the  effect  of  such  agree- 
ment in  evidence.  Folinsbee  v.  Sawyer,  157  N.  Y.  196,  51  N. 
E.  994;  Buttz  v.  Cook,  113  P.  282,  62  Wash.  90. 

Sec.  749b.    Evidence  admissible  to  show  contract  for  broker's 
compensation  made  as  alleged. 

Evidence  in  denial  of  defendant's  contention,  in  a  real  estate 
broker's  action  for  commission,  that  a  contract  for  compensation 
was  not  made  as  alleged;  held,  properly  admitted.  Nock  v.  Guth- 
rie,  86  A.  859,  239  Pa.  317. 


668  AMERICAN  LAW    EEAL  ESTATE  AGENCY. 

Sec.  750.    Evidence  of  length  of  time  land  for  sale  by  broker, 

to  show  knowledge  by  purchaser. 

In  an  action  for  commissions  for  procuring  a  purchaser  for 
land  where  the  land  was  purchased  by  one  claiming  to  buy 
on  his  own  initiative,  evidence  that  the  land  had  been  listed 
two  months  before  the  transaction  in  issue,  and  the  purchaser 
informed  of  the  land  being  for  sale  from  that  source,  was  ad- 
missible as  tending  to  explain  how  the  purchaser  ascertained 
that  the  land  was  for  sale  and  came  to  negotiate  with  defend- 
ant for  its  purchase.  Ryan  v.  Page,  134  Iowa  60,  111  N.  W.  405. 

Sec.  751.    Contract  between  plaintiff  and  third  person  to  show 

he  desired  to  purchase. 

In  an  action  to  recover  commissions  for  a  sale  of  defendant's 
land,  a  contract  entered  into  between  plaintiff  and  a  third  per- 
son setting  forth  the  terms  of  the  purchase,  was  admissible  to 
show  that  such  third  person  was  willing  to  purchase  the  prop- 
erty, though  plaintiff  had  no  authority  to  enter  into  a  contract 
which  was  binding  on  defendant.  Eepner  v.  Ford  (N.  Dak.  '07), 
111  N.  W.  619;  Clark  v.  Wilson,  41  Tex.  Civ.  App.  450,  91 
S.  W.  627. 

Sec.  752.    Evidence  concerning  purchaser's  securing  funds  to 
buy,  on  issue  as  to  ability. 

In  an  action  for  a  broker's  commissions,  evidence  concern- 
ing arrangements  made  by  the  purchaser's  broker  for  funds 
with  which  to  complete  the  purchase,  and  the  financial  ability 
of  the  concern  from  which  the  funds  were  to  be  secured,  was 
admissible.  Leuschner  v.  Patrick  (Tex.  Civ.  App.  '07),  103 
S.  W.  664. 

Sec.  752a.    Evidence  admissible  on  issue  whether  broker  was 

a  joint  purchaser. 

In  a  broker's  action  for  commissions,  evidence  that  to  en- 
able the  purchasers  to  make  the  cash  payment  required  plain- 
tiff agreed  to  loan  them  the  amount  of  the  commissions  claimed 
by  him,  was  admissible  on  the  issue  whether  plaintiff  was  a 
joint  purchaser.  Smith  v.  Fears  (Tex.  C.  A.  '09),  122  S.  W. 
433. 


PLEADINGS,  PRACTICE,  ETC.  669 

Sec.  753.    As  to  what  occurred  between  plaintiff  and  another 
as  to  drawing  deed  to  purchaser. 

In  an  action  for  a  broker's  commissions,  evidence  as  to  what 
occurred  between  plaintiff  and  another  with  reference  to  draw- 
ing the  deed  to  the  purchaser  plaintiff  claimed  to  have  secured 
was  admissible.  Leuschner  v.  Patrick  (Tex.  Civ.  App.),  103  S. 
W.  664. 

Sec.  754.    Evidence  of  value  of  lands  as  bearing  on  value  of 

plaintiff's  services. 

Where  plaintiff  sued  on  a  quantum  meruit  for  services  in 
obtaining  options  to  purchase  coal  lands  for  defendant,  evi- 
dence as  to  the  value  of  the  lands  was  admissible  as  bearing 
on  the  value  of  plaintiff's  services.  Denk  Bros.,  C.  &  C.  Co. 
v.  Stroetter,  229  111.  134,  82  N.  E.  250;  Huff  v.  Hardwick, 
19  Colo.  App.  416,  75  P.  593 ;  Lealce  v.  Scaief,  140  S.  W.  814, 
—  Tex.  Civ.  App.  — ;  Williams  v.  Phelps,  171  S.  W.  1100;  - 
Tex.  Civ.  App.  — ;  Stevens  v.  Wis.  Farm  Loan  Co.,  145  N".  W. 
173,  124  Minn.  421 ;  Chandler  v.  Gaines-Ferguson  Realty  Co.,  224 
S.  W.  484,  —  Ark.  Sup.  — . 

Sec.  755.    Declarations  of  defendant's  agents  as  part  of  the 

res  gestae. 

In  an  action  for  a  broker's  commissions,  declarations  of  de- 
fendant's agents  as  to  the  broker's  commissions,  made  at  the 
time  they  were  negotiating  and  closing  the  deal  with  the  pur- 
chaser found  by  the  broker,  are  admissible  as  part  of  the  res 
gestae.  Fritz  v.  Chicago  Grain,  &  Ele.  Co.,  136  Iowa,  699,  114 
N.  W.  193.  Tuffree  v.  Binford,  130  Iowa,  532,  107  N.  W.  425 ; 
Joff e  v.  Nagel,  114  N.  Y.  S.  905 ;  Mechem  on  Ag.  Sec.  715. 

Sec.  756.    Where  terms  of  sale  were  not  given,  evidence  of 

purchaser's  refusal  to  accept. 

Where,  in  an  action  by  a  real  estate  broker  for  commissions 
for  procuring  a  purchaser  of  real  estate,  it  appears  that  the 
terms  of  sale  were  not  given  by  defendant  at  the  time  the 
broker  was  employed,  evidence  of  occurrences  at  the  meeting 
of  the  parties  resulting  in  the  purchaser's  refusing  to  accept 


670  AMERICAN   LAW    REAL   ESTATE   AGENCY. 

the  contract  proposed  was  admissible,  whether  defendant  had 
an  option  on  the  property  or  had  merely  authority  to  sell  it. 
Behrman  v.  Marcus,  107  N.  Y.  S.  12.  Also  where  terms  were 
not  expressed  in  written  agreement,  parol  evidence  to  estab- 
lish same.  Casey  v.  Richards  (Cal.  App.  '09),  101  P.  36. 

Sec.  757.    Evidence  as  to  custom  of  agents  to  look  after  vacant 
property. 

The  testimony  of  real  estate  agents  in  St.  Louis  that  it  is 
a  custom  or  usage  of  real  estate  agents  having  in  charge  prop- 
erty for  the  collection  of  rents  to  look  after  the  property  while 
vacant,  is  admissible  to  explain  the  intended  scope  of  the 
agency.  Cameron  v.  McNa/ir,  76  Mo.  App.  366. 

Sec.  758.    Deed  and  receipt  as  tending  to  show  defendant 
could  have  obtained  the  property. 

In  an  action  for  a  broker's  commissions  for  negotiating  a 
purchase  which  defendant  refused  to  consummate,  a  deed  and 
receipt  purporting  to  have  been  signed  and  acknowledged  by 
the  owner,  and  proof  of  a  tender,  were  admissible,  with  other 
proof,  as  tending  to  show  that  defendant  could  have  obtained 
the  property  at  his  offer  had  he  desired  to  do  so,  where  no 
objection  was  raised  as  to  their  form  or  genuineness.  Hanna 
v.  EspaUa,  148  Ala,  313,  42  S.  443. 

Sec.  758a.    Evidence  admissible  to  show  defendant  refused  to 
execute  deeds  to  buyers  procured  by  broker. 

Evidence  that  the  agents  of  the  owner  of  lands,  with  the 
approval  of  the  owner,  sold  a  part  of  them  which  had  been 
intrusted  to  plaintiffs  for  sale,  to  persons  who  were  found  by 
plaintiffs,  and  induced  by  them  to  come  on  the  lands  with  the 
purpose  of  purchasing,  is  admissible  in  an  action  against  the 
owner  for  a  breach  of  his  contract  in  refusing  to  execute  deeds 
to  buyers  found  by  plaintiffs.  Burnett  v.  Edling,  19  Tex.  Civ. 
App.  711,  48  S.  W.  775. 

Sec.  759.    Evidence  of  person  who  purchased  claim  that  de- 
fendant had  no  part  in  the  transaction. 

In  an  action  for  commissions  by  a  person  engaged  to  secure 
title  to  certain  mining  properties,  where  defendant's  answer 


PLEADINGS,  PRACTICE,  ETC.  671 

averred  that  he  had  taken  no  part  in  the  transaction  involving 
their  subsequent  purchase  by  another  person,  and  plaintiff  had 
testified  that  he  would  not  be  entitled  to  commissions  had  the 
person  obtaining  the  purchase  dealt  with  persons  other  than 
defendant,  evidence  of  the  person  who  purchased  the  claims 
that  defendant  had  no  part  in  the  transaction,  was  admissible. 
Bailey  v.  Carlton,  43  Colo.  4,  95  P.  542. 

Sec.  760.    Evidence  tending  to  show  defendants  held  them- 
selves out  as  partners. 

In  an  action  by  a  real  estate  broker  for  commissions,  wherein 
one  defendant  filed  a  separate  plea  denying  that  he  was  justly 
liable  with  his  co-defendant,  evidence  was  admissible  by  the 
broker  as  to  various  trips  made  by  him  with  his  co-defendant 
around  the  country  for  the  purpose  of  selling  lands,  and  the 
action  of  the  defendant  denying  joint  liability  therewith,  as 
was  also  evidence  by  another  of  ,.a  purchase  by  him  of  land 
from  defendants  jointly,  as  tending  to  show  the  relation  of 
defendants  and  that  they  held  themselves  out  as  partners.  M c- 
Cann  v.  Meyer,  232  111.  507,  83  N.  E.  1042. 

Sec.  761.    Prices  at  which  similar  lands  were  selling  as  evi- 
dence of  good  faith. 

In  >an  action  by  a  real  estate  agent  for  commissions,  evidence 
of  the  prices  at  which  neighboring  lands  of  the  same  kind 
were  selling  at  the  time  the  sale  was  made  is  admissible  to 
show  that  a  good  price  was  realized,  thereby  tending  to  prove 
faithfulness  and  efficient  service.  Anderson  v.  Lewis  64  W. 
Va.  297,  61  S.  E.  160. 

Sec.  761a.    Competent  to  show  intentions  of  parties  by  subse- 
quent dealings. 

In  an  action  by  an  agent  against  the  principal  for  a  com- 
mission on  a  real  estate  deal,  it  is  competent  to  show  the  real 
intentions  of  the  parties  as  to  carrying  out  the  contract  by  their 
subsequent  dealings  in  pursuance  thereof.  Gibson  v.  Hunt  (Iowa 
Sup.  '03 ),  94  N.  W.  277;  Howe  Banking  &  Realty  Co.  v.  Baum, 
82  A.  970,  85  Conn.  383;  Bunyard  v.  Farman,  161  S.  W.  640, 
176  Mo.  App.  89;  Duff  &  Conger  v.  Makley,  175  N.  Y.  Sup.  777; 


672  AMERICAN  LAW   HEAL  ESTATE   AGENCY. 

Chandler  v.  Gaines-Ferguson  Realty  Co.,  224  S.  W.  484,  —  Ark. 
Sup.  — . 

Sec.  761b.    Evidence  admissible  on  question  whether  broker 
had  abandoned  the  contract. 

Where,  in  an  action  by  plaintiff  for  commissions  on  a  sale  of 
defendant's  property,  defendant  alleged  an  abandonment  of  the 
contract,  statements  of  plaintiff  that  he  continued  his  efforts  to 
dispose  of  the  property  were  competent  on  the  question  of 
whether  he  had  abandoned  the  contract.  Clements  v.  Stapleton, 
136  Iowa,  137,  113  N.  W.  546. 

When  a  broker  employed  to  find  a  purchaser,  after  repeated 
efforts,  stated  to  the  owner  that  he  could  not  "sell  the  place,"  it 
indicated  an  abandonment  of  the  agency.  McFarland  v.  Boucher, 
134  N.  W.  91,  153  Iowa,  716. 

Sec.  761c.    Broker's  contract  admissible  in  evidence. 

Where  the  assignee  of  certain  real  estate  brokers  sued  in  as- 
sumpsit  to  recover  compensation  for  a  broker's  services  rendered 
under  a  written  contract  with  defendant,  which  defendant  had 
cancelled  before  the  termination  of  the  contract  term,  the  contract 
was  admissible  in  evidence.  Breen  v.  Roy  (Cal.  App.  '08 ),  97 
P.  170;  James  E.  Carlson,  Inc.  v.  Bdbler,  174  N.  W.  824,  — 
Minn.  Sup.  — . 

Sec.  761d.    Evidence  held  admissible. 

(1)  Agreement  between  brokers  and  a  prospective  purchaser, 
by  which  he  employed  the  brokers  to  procure  a  buyer  from  him 
at  an  increased  price,  made  subsequent  to  the  original  employ- 
ment; held,  admissible  under  a  general  denial.     Dickinson  v.  Ty- 
sen,  103  1ST.  E.  703,  209  N.  Y.  395,  rev.  judg.,  132  N.  Y.  Sup. 
1126,  148  App.  Div.  894. 

(2)  In  an  action  by  a  broker  for  commissions  in  procuring  a 
purchaser,  evidence  of  the  length  of  time  covered  by  the  broker's 
correspondence  with  the  landowner  is  properly  admitted.     Alex- 
ander v.  Smith,  61  S.  68,  180  Ala.  541. 

(3)  Evidence   held   admissible   to   show   the   meaning   of  the 
phrase  "it  is  closed,"  in  a  real  estate  broker's  contract,  which  en- 


PLEADINGS,  PRACTICE,  ETC.  673 

titled  him  to  commission  only  in  case  the  sale  was  closed.    Nut- 
ting &  Co.  v.  Kennedy,  85  S.  E.  767,  16  Ga.  App.  560. 

(4)  In  an  action  by  a  real  estate  broker  for  commissions  on  a 
sale  of  land  alleged  to  have  been  made  by  agreement  with  the 
owner,  evidence  of  plaintiff  that  he  had  listed  the  land  on  his 
books  is  admissible.    Wright  v.  Olson,  191  111.  App.  272. 

(5)  In  an  action  for  procuring  a  purchaser  for  land,  evidence 
was  admissible  by  the  proposed  purchaser  that  when  he  told  the 
seller's  agent  that  he  would  buy  if  a  certain  other  person  did  not, 
he  was  willing  at  that  time,  and  executed  a  written  contract  to 
purchase  on  that  condition.     Beomer  v.  Stuber,  145  N.  W.  936, 
164  Iowa,  309. 

(6)  In  an  action  by  a  broker  for  commissions,  evidence  that 
the  purchaser  was  not  influenced  by  the  broker  in  making  the 
purchase  held  admissible.    Howard  v.  Street,  93  A.  923,  125  Md. 
289. 

(7)  In  a  suit  by  one  broker  against  another,  who  had  charge 
of  his  work  and  made  a  sale;  Jield,  that  plaintiff  might  show  the 
amount  which  defendant  received.     Debo  v.  Gamble,  152  N".  W. 
979,  186  Mich.  583. 

(8)  Where,  in  an  action  for  commissions,  there  is  a  contra- 
versy  as  to  the  listing  agreement  and  as  to  whether  plaintiffs  ef- 
forts to  make  a  sale  were  communicated  to  the  owner,  evidence  of 
such  efforts  is  competent.     Wright  v.  Waite,  148  N.  W.  50,  126 
Minn.  115. 

(9)  Where  defendants  contracted  to  pay  intestate  a  specified 
sum  on  a  sale  of  certain  land  for  intestate's  services,  evidence  of 
the  wife  of  the  landowner  that  when  papers  were  prepared  for 
the  sale  of  the  sixth  interest,  it  was  agreed  that  no  commissions 
should  be  paid  on  account  of  that  deal,  was  admissible.    Smith  v. 
Crane,  154  S.  W.  857,  169  Mo.  App.  695. 

(10)  In  an  action  for  a  broker's  commission,  evidence  that  the 
broker's  manager  had  made  an  appointment  by  telephone  for  the 
seller  to  meet  the  buyer  in  another  city  was  admissible.    National 
Milling  Co.  v.  Kirby,  94  A.  149,  —  R.  I.  Sup.  — . 

(11)  In  a  broker's  action  for  commissions,  testimony  regarding 
the  transaction,  mentioned  in  a  letter  which,  if  it  related  to  the 
transaction  in  question,  tended  to  show  an  abandonment  by  the 


674  AMERICAN   LAW  HEAL   ESTATE   AGENCY. 

broker  of  his  efforts  to  make  a  sale ;  lield,  wrongly  excluded.  HacTe- 
ett  v.  Straw,  144  N.  W.  655,  33  S.  D.  17. 

(12)  In  an  action  by  a  broker  for  commissions,  certain  evidence 
held  admissible  to  show  that  a  sale  could  not  be  made  on  the 
designated  date.    Longworih  v.  Stevens,  145  S.  W.  257,  —  Tex. 
Civ.  App.  — . 

(13)  Under  allegation  in  an  answer  in  an  action  for  a  broker's 
commission,  that  if  plaintiff  was  instrumental  in  effecting  the 
sale,  his  services  were  purely  voluntary  and  without  promise  of 
compensation,  evidence  was  admissible  that  plaintiff  and  defend- 
ant were  closely  related,  so  as  to  raise  the  presumption  that  the 
services  were  gratuitous.     Carl  v.  Wolcott,  156   S.  W.   334,  — 
Tex.  Civ.  App.  — . 

(14)  Where,  in  an  action  for  broker's  services  in  selling  land 
during    1910,    defendant    claimed    termination    of    contract    for 
plaintiff's  lack  of  diligence,  evidence  of  notice  to  plaintiff  by  de- 
fendant's president,  or  another  at  his  direction,  that  the  contract 
was  terminated,  was  admissible.     Putnam  Land  &  Dev.  Co.  v. 
EJser,  159  S.  W.  190,  —  Tex.  Civ.  App.  — . 

(15)  In  an  action  for  commissions  on  a  sale  of  land  under  an 
alleged  verbal  agreement,   defendant's  testimony  that  he  under- 
stood the  broker  was  buying  the  property,  and  expected  to  resell 
it,  improperly  excluded.     Cardozo  v.  Middle  Atlantic  Emi.  Co., 
82  S.  E.  80/116  Va.  342. 

(16)  Where    a    real    estate    broker,    suing    for    commissions, 
claimed  that  the  customer  produced  was  ready,  able  and  willing  to 
buy  on  the  conditions  fixed  by  defendants,  who  sought  to  show 
the  broker's  knowledge  of  an  additional  condition,  with  which  the 
customer  in  question  and  the  broker's  customer  refused  to  com- 
ply, it  was  error  to  exclude  testimony  showing  all  the  negotia- 
tions with  both  customers  in  the  broker's  presence,  and  the  pro- 
posed contracts  with  the  customers  submitted  to  them  by  defend- 
ants during  such  negotiations.    Arnold  v.  Schmeidler,  129  N.  Y. 
Sup.  408,  144  App.  Div.  420. 

(17)  In  a  broker's  action  for  commissions  for  an  exchange  of 
land  for  a  stock  of  goods,  evidence  as  to  the  nature  of  the  ex- 
change contract  and  the  value  of  the  goods,  and  as  to  the  reasons 
for  the  failure  to  complete  the  exchange,  was  relevant  and  compe- 
tent.   DuJce  v.  Graham,  143  N.  W.  817,  163  Iowa,  272. 


PLEADINGS,  PRACTICE,  ETC.  675 

(18)  In  an  action  for  broker's  commissions,  letters  exchanged 
between  the  owner  and  the  purchaser;  held,  admissible  to  show 
that   the   owner   himself   procured   the   purchaser.     Stafford   v. 
Eainey,  149  P.  611,  27  Cal.  App.  224. 

(19)  A  letter  written  to  a  purchaser  by  defendant's  attorneys, 
on  her  behalf,  and  stating  that  they  were  willing  to  conclude  the 
matter,  evidence  held  admissible.    Swift  v.  Moore,  82  S.  E.  914, 
15  Ga.  App.  254. 

(20)  A  telegram  sent  by  the  broker  to  the  joint  owner  who 
had  listed  the  land,  asserting  the  broker's  claim  for  commission, 
was  properly  admitted  upon  a  showing  of  knowledge  of  the  other 
joint  owners  of  the  broker's  claims,  there  being  other  evidence 
that  all  the  owners  knew  of  the  telegram.    Well  v.  Harding,  159 
S.  W.  1029,  —  Tex.  Civ.  App.  — . 

(21)  Evidence   that   defendant  made   no   other   objections   to 
the  contract  of  sale  denied  than  those  enumerated  by  him  at  that 
time  was  admissible.    J.  N.  Durilop  &  Co.  v.  Anderson,  133  N". 
W.  910. 

(22)  Evidence  of  an  express  offer  of  a  commission  to  a  third 
person  for  bringing  about  a  sale  to  another,  was  competent  to 
show  a  motive  for  the  principal's  desire  to  abandon  the  agree- 
ment  with   customers   procured  by  the  broker.     Hutchinson  v. 
Plant,  105  N".  E.  1017,  218  Mass.  148. 

(23)  Evidence  of  the  amount  obtained  by  the  principal  after 
abandoning  the  agreement  with  the  customers  procured  by  the 
broker,  was  admissible  in  the  discretion  of  the  judge.    Id. 

(23)  Evidence    of   parol    condition    in    owner's    agreement   to 
accept  land  in  lieu  of  cash;  held  admissible,  as  tending  to  show 
lack  of  fidelity  on  the  part  of  the  broker.     Worthen  v.  Stewart, 
172  S.  W.  855,  116  Ark.  294. 

(24)  In  a  case  for  broker's  commissions  for  securing  purchasers 
of  certain  real  estate  for  defendant  at  a  partition  sale,  evidence 
that  at  the  sale  one  of  the  plaintiffs  was  instrumental  in  stopping 
the  bids  of  an  adverse  bidder,  on  the  ground  that  he  was  unwilling 
to  comply  with  the  terms  of  the  sale,  and  thereby  render  the  ser- 
vice in  accordance  with  his  duty,  as  representative  of  the  defend- 
ants, was  admissible.    Davis  v.  Gross,  134  S.  W.  83,  153  Mo.  App. 
607. 


676  AMERICAN  LAW    REAL  ESTATE  AGENCY. 

(24)  Where  defendants  employed  plaintiffs  to  secure  certain 
property  about  to  be  sold  at  a  partition  sale,  evidence  that  plain- 
tiffs agreed  not  to  have  any  other  bidders  at  the  sale  than  defend- 
ants was  admissible.    Id. 

(25)  Where  it  appeared  that  the  owner  orally  employed  the 
brokers,  and  then  contracted  a  sale  to  the  purchaser  procured  by 
them,  an  agreement  between  the  purchaser  and  the  brokers,  by 
which  the  purchaser  employed  the  brokers   to  procure   a  buyer 
from  him  at  an  advanced  price;  held,  admissible  on  the  question 
whether  the  brokers  in  good  faith  performed  their  contract.   Dick- 
inson v.  Tyson,  103  N.  E.  703,  209  N.  Y.  395,  rev.  judg.,  132 
N.  Y.  Sup.  1126,  148  App.  Div.  894. 

(26)  In  action  for  commission  for  selling  a  farm  of  defendant, 
evidence  that  the  broker  had  agreed  to  assist  the  purchaser  in 
procuring  the  farm,  held  competent,  on  the  issue  of  his  agency  for 
the  purchaser.    Hoffman  v.  Steile,  139  N.  W.  733,  152  Wis.  84. 

(27)  Where  a  real  estate  agent  was  the  secret  but  accredited 
representative  of  defendants  in  an  attempt  to  sell  certain  land 
to  plaintiff,  evidence  of  what  he  did  and  said  while  in  the  per- 
formance of  his  duty  as  agent  was  admissible  against  defendants. 
Schiff er  v.  Anderson,  146  F.  457,  76  C.  C.  A.  667. 

(28)  In  an  action  by  assignee  of  real  estate  broker  to  recover 
as  commission  payment  received   from   purchaser,   and   paid  by 
broker  to  owner  as  consideration  for  a  contract,  giving  purchaser 
the  right  to  consummate  the  sale,  earnest  money  receipt  given 
by  owner  to  broker  is  material  as  tending  to  show  that  payment 
was  made  as  consideration  for  the  contract.    Halloran  v.  German 
American  Mer.  Bk.,  165  P.  80,  —  Wash.  Sup.  — . 

(29)  In  broker's  action  for  commission  on  sale  of  farm,  where 
plaintiff  testified  that  one  of  the  terms  of  contract  was  that  buyer 
must  first  dispose  of  his  farm,  plaintiff  was  properly  permitted  to 
show  that  buyer  had  complied  with  conditions.     McFarland  v. 
Walton,  164  N.  W.  737,  —  Iowa  Sup.  — . 

(30)  In  an  action  by  a  broker  for  compensation,  in  which  de- 
fendant claimed  fault  of  plaintiff  in  not  procuring  a  person  able 
and  willing  to  make  an  agreed  exchange,  in  that  such  party  did 
not  show  a  good  and  merchantable  title  to  his  land,  and  that  the 
cause  of  failure  of  negotiations  was  in  the  defect  in  defendant's 
title,  because  of  pending  litigation;  held,  admissible  to  show  that 


PLEADINGS,  PRACTICE,  El  677 

the  other  party  who  was  to  make  the  exchange  had  notice  of  such 
defect  in  the  title.  Empire  Securities  Co.  v.  Noble,  81  S.  5,  — 
Ala.  Sup.  — . 

(31)  Where  defendant  had  introduced  proof  as  to  the  date  of 
proceedings  in  another  suit  affecting  title  to  the  land  and  of  the 
parties  to  it,  etc.,  the  record  of  such  case  was  admissible  to  con- 
tradict or  sustain  that  evidence.    Id. 

(32)  The  record  in  another  suit  against  defendant  held  admis- 
sible, since  it  may  have  involved  title  to  land  exchanged,  as  pre- 
venting the  title  from  being  merchantable,  thus  showing  that  the 
fault  to  consummate  the  exchange  was  the  fault  of  defendant  and 
not  of  plaintiff.    Id. 

(33)  In  an  action  to  recover  an  agreed  broker's  commission 
for  procuring  a  purchaser  for  real  property,  brought  against  the 
husband  of  one  of  the  twelve  heirs  thereto,  it  was  permissible  for 
the  defendant  to  show,  as  bearing  on  the  probability  of  his  having 
employed  plaintiff,  that  the  property  was  held  by  the  twelve  heirs, 
the  consent  of  all  of  whom  would  be  necessary  to  effect  the  sale. 
Baum  v.  Kelly,  176  E".  Y.  Sup.  22. 

(34)  A  written  agreement  to  pay  a  broker  a  stated  commis- 
sion for  selling  real  estate,  satisfying  the  statute  of  frauds,  and 
purporting  on  its  face  to  have  been  made  after  the  sale,  was  prop- 
erly admitted  in  evidence  to  show  the  relationship  of  principal 
and  agent,  in  a  suit  for  money  had  and  received  by  such  broker. 
Puffer  v.  Bodley,  181  P.  1,  —  Or.  Sup.  — . 

(35)  Evidence  as  to  the  market  value  of  land  conveyed  to 
plaintiff  by  defendant,  as  part  of  the  purchase  price  for  land  sold 
by  plaintiff  to  another  through  defendant  as  agent,  is  admissible 
in  action  to  recover  the  sum  received  by  defendant  in  payment 
for  such  land,  as  part  of  the  original  cash  offer  for  plaintiff's 
land,  not  disclosed  by  defendant  to  plaintiff,  to  show  that  plain- 
tiff did  not  commit  a  breach  in  repudiating  the  transaction.     Id. 

(36)  In  a  land  broker's  action  upon  principal's  written  agree- 
ment to  pay  for  services  performed,  where  answer  alleged  there 
was  no  consideration  for  agreement,  parol  evidence  was  not  in- 
admissible as  being  violative  of  the  statute  of  frauds  requiring  a 
brokers'  contract  to  be  in  writing,  but  was  admissible  for  the 
purpose  of  showing  consideration.     Batzlaff  v.  Trainor-Desmond 
Co.,  183  P.  269,  —  Cal.  App.  — . 


678  AMEBICAN  LAW    EEAL   ESTATE  AGENCY. 

(37)  In  a  broker's  action  for  commission  on  a  sale  of  listed 
property,  any  testimony  tending  to  show  that  there  was  no  agree- 
ment in  the  same  sense  between  the  parties  relative  to  alleged 
contract  of  listment  would  be  admissible.     Pope  v.  Peoples,  101 
S.  E.  303,  —  Ga.  App.  — . 

(38)  In  an  action  for  a  commission  under  a  valid  brokerage 
contract  authorizing  a  sale  on  certain  terms  as  to  down  payment 
and  as  to  the  balance,  it  was  proper  to  admit  proof  that  defendant 
had  later  sold  the  land  and  received  a  small  payment  down.    Ed- 
mundson  v.  Phenix,  178  N.  W.  893. 

(39)  A  letter  written  to  defendant  by  a  stranger,  on  behalf  of 
plaintiff,  communicating  the  fact  and  terms  of  sale  negotiated  by 
plaintiff,  was  admissible.    Id. 

(40)  Where  amount  of  broker's  commission  for  services  in  ef- 
fecting an  exchange  of  land  is  not  agreed  on,  the  fair  market 
value  of  the  property  exchanged  or  offered  for  exchange  would  be 
competent  and  relevant.    Morrison  v.  Jackson,  85  S.  573   (Ala. 
App.). 


CHAPTER  X. 
EVIDENCE— INADMISSIBLE. 

Sec.  762.    On  bill  for  specific  performance,  that  land  in  one 
year  doubled  in  value. 

On  a  bill  for  specific  performance  of  a  contract  to  convey, 
in  which  the  defense  is,  that  the  broker  who  made  the  sale 
did  so  without  authority  of  defendant,  evidence  that  the  land 
in  one  year  doubled  in  value  is  inadmissible.  Wilkinson  v. 
Churchill,  114  Mass.  184;  Groin  v.  Hess,  102  Iowa,  140  71  N. 
W.  218.  Compare  Sec.  572. 

Sec.  763.    Agent's  private  record  book  to  prove  authority  to 
sell  land. 

The  private  record  book  of  a  real  estate  agent  is  not  com- 
petent to  prove,  in  an  action  for  commissions,  that  authority 
had  been  given  to  him  by  the  owner  of  the  land  to  sell  the 
same.  Boyd  v.  Jennings,  46  111.  App.  290.  Compare  Monroe 
v.  Snow,  131  111.  126,  23  N.  E.  401. 

Sec.  764.    Evidence  to  prove  custom  among  brokers  in  ex- 
changes to  charge  each  party. 

An  offer  to  prove  a  general  custom  among  brokers  acting 
for  both  parties  to  an  exchange  of  lands  to  charge  commissions 
to  each,  held  properly  refused,  for  the  reason  that  it  appeared 
that  the  broker  was  the  agent  of  one  of  the  parties,  and  could 
not,  therefore,  legally  demand  compensation  from  the  other. 
Dartt  v.  Somnesym,  86  Minn.  55,  90  N.  W.  115.  See  also  Sec. 
578. 

Sec.  765.    Evidence  of  an  offer  of  compromise. 

Evidence  that  the  owner  refused  to  pay  the  broker,  but  of- 
fered, as  a  compromise,  to  pay  a  fixed  amount  and  to  give  an- 
other specified  amount  to  a  church,  is  inadmissible,  under  the 

679 


'680  AMERICAN  LAW  REAL  ESTATE   AGENCY. 

rule  that  propositions  made  with  a  view  to  a  compromise  are 
not  proper  evidence.  Emery  v.  Atlanta  R.  E.  Ex.,  88  Ga.  321, 
14  S.  E.  556 ;  Ross  v.  Decker,  68  N.  Y.  S.  790,  34  Misc.  168. 

Sec.  766.    Evidence  by  unexpert  witnesses  as  to  the  value  of  a 
broker's  services. 

It  was  not  error  to  refuse  to  admit  the  opinions  of  witnesses 
as  to  the  value  of  plaintiff's  services  in  negotiating  a  purchase, 
the  witnesses  not  being  experts  and  having  no  better  means 
of  forming  a  judgment  than  the  jurors.  Miller  v.  Early,  22 
Ky.  L.  R.  825,  58  S.  W.  789. 

Sec.  766a.    Evidence  by  expert  as  to  value  of  property,  and 
as  to  his  competency. 

Where  real  estate  broker  is  testifying  as  to  the  value  of  an  op- 
tion, evidence  showing  his  familiarity  with  the  property,  and  its 
increase  in  value  in  the  past,  is  admissible  to  show  his  compe- 
tency as  an  expert.  Eastman  v.  Dunn,  83  A.  1057,  34  R.  I.  416. 

Sec.  767.    In  an  action  for  executed  Jale  evidence  of  respon- 
sibility of  purchaser. 

In  an  action  by  a  broker  against  a  vendor  for  his  commis- 
sions, the  contract  between  the  vendor  and  purchaser  being 
executed,  and  there  being  no  allegation  or  proof  that  the  bro- 
ker induced  the  vendor  to  execute  the  contract,  or  any  repre- 
sentation of  bad  faith,  testimony  as  to  the  financial  ability  of 
the  purchaser  was  inadmissible.  Fleet  v.  Barker,  104  N.  Y.  S. 
940,  120  App.  Div.  455.  Compare  Dodson  v.  Milliken,  27  App. 
(D.  C.)  500. 

Sec.  768.    Evidence  that  defendant  wanted  witness  to  advise 
him  as  to  purchaser's  proposal. 

In  an  action  for  a  broker's  commissions,  evidence  that  de- 
fendant applied  to  witness  to  know  what  to  do  concerning  the 
proposed  purchaser's  proposition  to  pay  for  the  land  in  monthly 
installments,  and  the  witness's  advice  given  in  response,  was  in- 
admissible. Leuschner  v.  Patrick  (Tex.  Civ.  App.  '07),  103  S. 
W.  664. 


PLEADINGS,  PUACTICE,  ETC.  681 

Sec.  769.    Oral  evidence  to  extend  expired  written  authority 
to  agent. 

Written  authority  was  entered  into  giving  a  broker  the  ex- 
clusive right  to  sell  real  estate  at  a  fixed  price  before  a  certain 
date.  Held,  that  an  offer  to  show  that  at  the  time  of  the  exe- 
cution of  the  contract  defendant  told  plaintiff  that  if  the  said 
sale  was  effected  after  the  expiration  of  the  written  contract 
defendant  would  pay  the  broker  his  commission,  was  inadmis- 
sible. Laxley  v.  Studebacker,  75  N.  J.  L.  599,  68  A.  98. 

Sec.  769a.    Written  contract  insufficient  and  parol  evidence 
inadmissible. 

Under  Ballinger's  Annotated  Code  and  Statutes,  Sec.  4576,- 
amended  by  laws  of  1905,  p.  110,  c.  58,  requiring  contracts  for 
the  employment  of  brokers  to  sell  real  estate  for  a  commission 
to  be  in  writing,  a  written  contract  employing  a  broker  to  pro- 
cure a  purchaser  of  real  estate  for  a  fixed  price  net,  containing 
no  stipulation  for  the  payment  of  a  commission,  and  showing 
the  erasure  in  the  printed  form  used  of  the  words  providing 
for  the  payment  of  a  commission,  is  insufficient,  and  parol 
evidence  fixing  the  liability  for  the  commissions  is  inadmissible. 
Foote  v.  Bobbins,  50  Wash.  277,  97  P.  103;  Holland  v.  Johnson, 
174  N.  W.  874,  —  N.  D.  Sup.  — . 

Sec.  770.    In  an  action  by  architect  for  fees,  cost  of  building 
given  building  department.  - 

In  an  action  by  an  architect  for  fees  for  making  plans  for 
a  building  at  a  specified  per  cent,  of  its  cost,  a  statement  as 
to  the  cost  in  the  plans  filed  with  the  building  department, 
was  inadmissible.  Israels  v.  McDonald  107  N.  Y.  S.  826  123 
App.  Div.  63. 

Sec.  771.    In  an  action  for  commissions  evidence  of  defend- 
ant's dealings  with  other  brokers. 

In  an  action  by  a  broker  for  compensation  on  the  issue  as 
to  whether  the  contract  with  the  principal  called  for  a  com- 
mission of  a  certain  percentage  of  the  proceeds  of  the  sale,  or 
of  the  proceeds  over  a  specified  price,  evidence  as  to  defendant's 
dealings  with  other  real  estate  agents,  and  the  terms  under 


682  AMERICAN   LAW   HEAL   ESTATE   AGENCY. 

which  he  had  listed  the  land  with  them,  was  inadmissible.  Lloyd 
v.  Eerley  (Tex.  Civ.  App.  '07),  106  S.  W.  696;  Ross  v.  Carr 
(N.  M.  Sup.  '09),  103  P.  307;  Leander  v.  Graves  (Colo.  Sup. 
'09),  100  P.  403;  Steinman  v.  Henry  Morganthau  Co.,  154  N".  Y. 
Sup.  216;  Engles  v.  Blacker,  192  S.  W.  193,  127  Ark.  385. 

Sec.  771a.    Plaintiff's  testimony  as  to  loss  of  profits. 

In  action  against  railroad  for  services  rendered  in  negotiating 
leases  and  in  surrendering,  plaintiff's  own  evidence  as  to  alleged 
loss  of  profits  from  plaintiff's  retail  grocery  business,  etc.,  held  in- 
admissible. Wash.  B.  &  A.  Elec.  R.  v.  Moss,  100  A.  86,  130  Md. 
198.  Plaintiff's  own  evidence  as  to  the  value  of  advantage  of 
property  to  road  was  inadmissible.  Id. 

Sec.  771b.    Evidence  as  to  property  not  involved  in  suit  inad- 
missible. 

Under  a  declaration  claiming  commissions  only  on  property 
purchased  by  defendant,  evidence  of  negotiations  by  plaintiffs 
in  regard  to  other  property  is  inadmissible.  Martien  v.  Mayor, 
etc.,  Baltimore,  109  Md.  260,  71  A.  966. 

Sec.  772.    Receipt  in  connection  with  another  exchange  of 
the  same  property. 

In  an  action  by  real  estate  brokers  for  a  commission  for 
negotiating  an  exchange  of  defendant's  property,  which  de- 
fendant refused  to  carry  out,  a  receipt  given  by  one  of  the 
plaintiffs  to  defendant  for  a  commission  paid  him  by  defend- 
ant for  effecting  an  exchange  of  the  same  property  with  an- 
other purchaser  is  inadmissible,  because  foreign  to  the  issues. 
Goodman  v.  Linetzky,  107  N.  Y.  S.  50. 

Sec.  773.    Printed  statutes  of  New  Jersey,  under  plea  of  non- 
assumpsit. 

Where  a  resident  of  New  Jersey  sues  to  recover  on  a  parol 
contract  for  commissions  for  a  sale  of  real  estate  in  New  Jer- 
sey, the  printed  statutes  of  New  Jersey  requiring  such  con- 


PLEADINGS,  PRACTICE,   ETC.  683 

tracts  to  be  in  writing  were  inadmissible  under  the  plea  of  non- 
assumpsit,  but  only  by  way  of  special  matter,  after  due  notice. 
Galloway  v.  Prettynwn,  218  Pa.  293,  67  A.  418. 

Sec.  774.    In  action  against  husband  for  commissions,  what 
was  said  between  wife  and  purchaser. 

In  an  action  against  a  husband  for  a  broker's  commissions 
for  selling  the  wife's  land,  testimony  that  another  told  de- 
fendant that  plaintiff  tried  to  sell  him  the  property  at  a  profit 
above  the  figure  the  wife  asked,  and  as  to  what  was  said  be- 
tween the  wife  and  one  of  the  purchasers,  was  inadmissible. 
Green  v.  Brady,  152  Ala.  507,  44  S.  408. 

Sec.  775.    Declarations  and  statements  by  plaintiffs  as  to  sale 

of  land,  as  self-serving. 

In  an  action  for  a  broker's  commissions,  declarations  and 
statements  by  the  plaintiff  as  to  the  sale  of  the  land,  and  what 
he  would  be  entitled  to,  were  self-serving  and  inadmissible. 
Leutscher  v.  Patrick  (Tex.  Civ.  App.  '07),  103  S.  W.  664; 
Boss  v.  Muskowitz,  100  Tex.  434,  100  S.  W.  768.  Also  by 
the  owner  as  to  the  sale  of  the  property.  Goldstein  v.  D'Arcy, 
201  Mass.  312,  87  N.  E.  584. 

Sec.  776.     On  issue  whether  defendant's  agent  had  authority 
— Defendant's  opinion. 

Where  the  issue  was  whether  the  defendant's  agent  had  au- 
thority to  make  a  certain  contract,  defendant's  opinion  to  that 
effect  was  inadmissible,  as  being  a  conclusion  of  law.  Roche 
v.  Pennington,  90  Wis.  107,  62  N.  W.  946. 

Sec.  776a.    Statement  by  owner  in  regard  to  title  the  mere 
expression  of  an  opinion. 

That  a  land  broker  was  told  by  the  owner  that  defects  had 
been  found  in  the  title,  but  that  he  believed  it  was  good,  as 
they  had  owned  the  land  thirty  or  forty  years,  was  sufficient 
to  put  the  broker  on  inquiry  and  charge  him  with  notice  of 
the  dtefects;  the  statement  by  the  owner  that  the  title  was 


684  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

good    oeing  merely   an   expression   of   opinion.     Montgomery   v. 
Amsler   (Tex.  Civ.  App.  '09),  122  S.  W.  307. 

Sec.  776b.    Admission  of  contract  in  evidence  held  prejudicial 
to  plaintiff. 

"Where,  in  an  action  for  broker's  commissions  for  procuring 
a  purchaser  of  real  estate,  the  issue  was  whether  plaintiff  had 
been  employed  to  procure  a  purchaser,  the  admission  in  evi- 
dence of  a  contract  of  sale  drawn  in  the  absence  of  plaintiff, 
stating  that  the  seller  and  purchaser  agreed  that  no  broker 
had  brought  about  the  sale,  and  that  no  commission  was  to  be 
paid  to  the  broker,  was  prejudicial  to  plaintiff.  Koch  v.  Bjor- 
kegran,  119  N.  Y.  S.  193. 

Sec.  777.     In  interpleader,  declaration  of  principal  that  one 

was  entitled  to  the  fee. 

In  an  action  in  interpleader  where  the  issue  between  the  par- 
ties is  as  to  the  right  to  commissions  for  the  sale  of  real  es- 
tate, the  declarations  of  the  owner  of  the  property  sold,  made 
some  time  after  the  sale  had  been  effected  and  in  the  absence 
of  the  defendant,  to  the  effect  that  he  thought  plaintiff  was 
entitled  to  the  commission,  are  inadmissible.  Shipma-n  v. 
Freeh,  3  N.  Y.  S.  932,  15  Daly,  151. 

Sec.  778.    Statement  by  principal  that  absent  broker  had  no 

authority  to  sell. 

In  an  action  by  a  broker  for  commissions  on  a  sale  of  land, 
where  another  broker  claiming  the  same  commissions  is  sub- 
stituted as  defendant  for  the  principal,  he  having  paid  the 
commissions  into  court,  the  principal's  statement  to  one  of  the 
brokers,  in  the  other's  absence,  that  the  absent  broker  had  no 
authority  to  sell  the  land  with  a  builder's  loan,  is  properly  ex- 
cluded. Id. 

Sec.  779.    Under  general  denial,  that  defendant  sold  premise! 

before  sale  by  plaintiff. 

Where  the  answer  is  a  genera^  denial,  the  issue  presented 
by  the  pleading  is  the  truth  of  the  allegations  of  the  petition. 


PLEADINGS,  PRACTICE,  ETC.  685 

Under  such  an  issue  affirmative  proof  in  favor  of  the  defend- 
ant can  not  be  received,  and  an  instruction  submitting  such 
proof  to  the  jury  is  erroneous,  and  hence,  evidence  offered  by 
defendant  that  he  sold  the  premises  to  other  parties  before  the 
sale  by  plaintiff  is  inadmissible.  Griffith  v.  Woolworth,  44  N. 
W.  1137,  28  Neb.  715. 

Sec.  780.    Unless  pleaded,  evidence  that  defendant  defeated 
payment. 

In  an  action  by  a  broker  to  recover  commissions  for  selling 
land,  evidence  that  the  act  of  defendant  prevented  the  hap- 
pening of  the  contingency  on  which  payment  was  to  be  made 
was  inadmissible,  the  excuse  not  being  pleaded  by  the  plain- 
tiff. Turner  v.  Lane,  93  N.  Y.  S.  1083,  47  Misc.  387. 

Sec.  781.    Evidence  that  defendant's  agent  refused  hotel  to 
prospective  purchasers. 

In  an  action  by  a  broker  for  commissions  alleged  to  have 
been  lost  by  the  refusal  of  his  client  to  convey  the  land  sold, 
evidence  that  the  client's  agent  had  refused  the  use  of  the 
client's  shed  and  hotel  at  the  place  where  the  land  is  situated 
to  prospective  purchasers  found  by  plaintiff  was  inadmissible. 
Burnet  v.  Edling,  19  Tex.  Civ.  App.  711,  48  S.  W.  775. 

Sec.  782.    Evidence  as  to  value  of  services  where  contract  fixed 
commission. 

Where,  in  an  action  for  a  broker's  commissions  for  negotiat- 
ing a  purchase,  it  appeared  that  if  he  had  been  employed,  he 
was  entitled  to  a  fixed  commission  under  the  contract,  evi- 
dence was  inadmissible  to  show  what  was  a  reasonable  commis- 
sion for  the  services.  Hanna  v.  Espalla,  148  Ala.  313,  42  S. 
443 ;  McDermott  v.  Abney,  106  Iowa,  749,  77  N.  W.  505 ;  Beatty 
v.  Russell,  41  Neb.  321,  59  N.  W.  919;  Evans  v.  Gay,  38  Tex. 
Civ.  App.  442,  74  S.  W.  575;  Fortran  v.  Stowers,  113  S.  W. 
631  (Tex.  Civ.  App.  '08) ;  Goldstein  v.  D'Arcy,  87  N.  E.  584, 


686  AMERICAN  LAW   REAL   ESTATE   AGENCY. 

201  Mass.  312;  Canton-Hughes  Pump  Co.  v.  Llera,  215  F.  79, 
131  C.  C.  A.  287 ;  Kohen  v.  Kieley,  129  N.  Y.  Sup.  353 ;  Kitchen 
v.  Kaveny,  145  N.  W.  543,  33  S.  D.  312;  Walker  v.  O'Neal,  94 
S.  E.  835,  —  Ga.  App.  — . 

Sec.  783.    Evidence  of  option  after  sale  had  been  completed. 

In  an  action  by  a  broker  for  commissions,  evidence  of  inde- 
pendent negotiations  regarding  an  option  after  a  sale  had  been 
completed  by  plaintiff  is  inadmissible,  though  it  might  have 
been  competent  if  relating  to  negotiations  before  the  sale  was 
made.  Reed  v.  Light,  170  Ind.  550,  85  N.  E.  9 ;  Geo.  B.  Loving 
Co.  v.  Hesperian  Cattle  Co.,  176  Mo.  330,  75  S.  W.  1095. 

Sec.  783a.    Evidence  held  inadmissible. 

Where  a  contract  between  an  owner  of  land  and  his  agent 
for  sale  contained  specific  authority  to  the  agent  to  sell  a  cer- 
tain acreage,  evidence  was  inadmissible,  in  an  action  by  the 
agent  for  commissions,  to  show  that  the  tract  contained  a  great- 
er acreage  than  stated,  to  defeat  the  claim,  where  there  was 
no  proof  that  the  defendant  asserted  any  claim  to  a  greater 
acreage  prior  to  the  time  plaintiff  made  the  sale.  Denton  v. 
Howell  (Tex.  Civ.  App.  '05),  87  S.  W.  221. 

Sec.  783b.    When  evidence  of  improvements  inadmissible. 

Evidence  of  improvements  made  by  a  land  owner,  without 
the  knowledge  of  his  broker,  can  not  be  shown  in  an  action 
by  the  broker  for  commissions  for  procuring  a  purchaser  for 
the  land  at  the  price  fixed  before  the  making  of  the  improve- 
ments, as  tending  to  show  that  the  price  so  fixed  must  have 
been  changed.  Hawley  v.  Haddocks,  25  Wash.  297,  65  P.  544. 

Sec.  783c.    Testimony  of  greater  acreage  inadmissible  to  de- 
feat broker's  right  to  commissions. 

Where  a  contract  specifically  authorizes  the  sale  of  a  tract 
of  land  containing  a  certain  number  of  acres,  'and  it  does  not 
appear  that  prior  to  the  sale  the  owner  claimed,  or  that  the 
agent  knew,  that  there  was  a  greater  number  of  acres  in  the 
tract,  evidence  that  the  tract  did  contain  a  greater  number  of 


PLEADINGS,  PRACTICE,  ETC.  687 

acres  is  inadmissible  to  defeat  an  action  for  commissions.    How- 
ell  v.  Denton  (Tex  Civ.  App.  '08),  113  S.  W.  314. 

Sec.  783d.    Evidence  held  inadmissible. 

(1)  Where,   in  an  action  by  a   broker  for  commissions,   the 
owner  of  the  land  denied  making  any  contract  with  the  broker, 
the  testimony  of  a  third  person  that  he  had  an  offer  at  about  the 
time  of  the  making  of  the  alleged  contract  with  the  broker  to 
purchase  from  the  owner  on  more  favorable  terms,  was  incompe- 
tent, in  the  absence  of  an  attack  on  the  credibility  of  the  owner. 
Kelly  &  Orady  v.  Davis,  138  S.  W.  1186,  —  Tex.  Civ.  App.  — . 

(2)  Under  Civil  Code,  Sec.  1624,  requiring  a  contract  of  em- 
ployment to  sell  land  to  be  in  writing  and  describing  the  land, 
where,  construed  as  a  whole,  the  letters  claimed  to  constitute  such 
a  hiring,  held,  manifestly  referred  only  to  sales  of  the  "T"  tract, 
parol  evidence  that  the  employers,  when  using  in  one  of  them  the 
phrase,  "a  fair  compensation  for  the  sale  of  lands,  which  we  will 
now  take  up  vigorously,"  had  in  mind  and  intended  to  describe 
and  designate  the  "P"  tract,  inadmissible.    Pronix  v.  Sacramento 
Valley  Land  Co.,  126  P.  509,  19  Cal.  App.  529. 

(3)  In  an  action  by  a  broker  for  damages  for  failure  of  de- 
fendant to  carry  out  a  contract  of  exchange  of  real  estate,  so  as 
to  prevent  the  broker  from  recovering  a  commission  from  the 
other  party  to  the  exchange,  evidence  of  the  invalidity  of  the  con- 
tract was  inadmissible  under  a  pleading  recognizing  its  validity, 
and  alleging  the  refusal  of  defendant  to  carry  it  out,  without 
legal  excuse.    Bird  v.  Rowell,  167  S.  W.  1172,  180  Mo.  App.  421. 

(4)  In  an  action  for  commissions  for  purchase  of  realty,  where 
the  averment  of  the  plaintiff  was  that  plaintiff  was  employed  by 
the  owner  to  procure  a  sale,  and  that  defendant  agreed  that  if 
plaintiff  gave  him  information  as  to  property  defendant  desired  to 
purchase,  he  would  purchase  only  through  plaintiff  as  broker,  so 
as  to  enable  him  to  earn  a  commission  from  the  seller,  but  that 
defendant   bought,    without    informing   the    seller   that    plaintiff 
brought  about  the  sale,  so  as  to  cause  him  to  lose  a  commission 
from  the  seller,  evidence  that  defendant's  agreement  was,  that  if 
plaintiff  should  not  receive  a  commission  from  the  seller  on  prop- 
erty purchased  by  defendant,  the  latter  would  pay  it,  went  to  es- 


688  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

tablish  an  entirely  different   contract,   and  was   not   admissible. 
Silvert  v.  Kemmel,  122  N.  Y.  Sup.  846,  138  App.  Div.  229. 

(5)  Where  it  was  not  pleaded  that  the  commission  was  to  be 
paid  out  of  the  first  crop,  evidence  that  the  first  crop  was  a  fail- 
ure; held,  properly  excluded.     Price  v.  Partridge,  139  P.  34,  78 
Wash.  362. 

(6)  In  an  action  by  broker  for  commissions  for  procuring  a 
purchaser  pursuant  to  a  contract,  evidence  of  what  the  broker  had 
done  under  a  prior  contract  with  another  person,  held  incompe- 
tent.   Moore  v.  Moss,  175  S.  W.  1195,  117  Ark.  593. 

(7)  In  an  action  to  recover  a  broker's  compensation,  evidence 
offered  by  defendant  as  to  the  amount  she  had  expended  to  per- 
fect the  title  and  to  pay  interest  on  mortgage;  held  incompetent, 
where  the  written  agreement  between  the  parties  provided  that 
defendant  should  bear  these  expenses.    Watson  v.  Vollentine,  183 
111.  App.  559. 

(8)  In  an  action  for  procuring  Z.  as  purchaser  of  property, 
evidence  by  the  attorney  who  prepared  the  contract  of  sale  to  Z. 
that  another  was   substituted  as   seller  instead   of  the  original 
owner,  for  whom  plaintiff  acted,  in  order  to  avoid  two  commis- 
sions out  of  it,  so  the  other  fellow  could  not  go  in  for  a  commis- 
sion; held  inadmissible.    Boomer  v.  Stuber,  145  N".  W.  936,  164 
Iowa,  309. 

(9)  Defendant  may  not  show  a  contract  he  made  with  another 
broker  for  the  sale  of  defendant's  farm,  as  evidence  that  his  con- 
tract with  plaintiff  was  like  it,  and  not  as  claimed  by  plaintiff. 
Stoner  v.  Nail,  150  S.  W.  648,  150  Ky.  511,  mod.  opin.  on  re., 
148  S.  W.  8,  149  Ky.  124. 

(10)  In  an  action  by  brokers  for  commission,  on  the  theory 
that,  under  their  contract,  they  were  entitled  to  it  though  the 
sale  was  made  by  the  owner,  evidence  of  efforts  made  by  them  to 
sell  and  expenses  incurred  by  them  in  so  doing,  is  inadmissible. 
Bomar  v.  Munn,  158  S.  W.  1186,  —  Tex.  Civ.  App.  — . 

(11)  In  a  broker's  action  for  compensation,  evidence  of  the 
purchaser's  statement  that  the  broker  had  abandoned  any  effort 
to  sell  to  him  and  purposely  negotiated  directly  with  the  owner; 
held,  inadmissible  to  show  the  owners  could  have  sold.     White  v. 
Holman,  180  S.  W.  286,  —  Tex.  Civ.  App.  — . 


PLEADINGS,  PBACTICB,  ETC.  689 

(12)  Evidence  that  sometime  after  defendant  listed  property 
with  plaintiffs  for  sale  a  third  party  authorized  plaintiff's  vice- 
president  to  sell  for  a  certain  price,  and  to  have  all  over  that 
price   as   commission;    held,   erroneously   admitted.      Cardozo    v. 
Middle  Atlantic  Em.  Co.,  82  S.  E.  80,  116  Va.  342. 

(13)  In  a  broker's  action  for  commission,   defendant's   testi- 
mony that  he  made  the  sale  because  in  need  of  money  was  prop- 
erly excluded.    Paries  v.  Sullivan,  152  S.  W.  704,  —  Tex.  Civ. 
App.  — . 

(14)  Where  the  solvency  of  the  purchasers  procured  by  plain- 
tiff was  not  in  issue,  and  the  defendant  owner  by  accepting  them 
and  signing  the  contract  waived  any  objections  to  their  solvency, 
evidence  that  they  did  not  return  any  property  for  taxation  was 
properly  excluded  as  immaterial.    Swift  v.  Moore,  82  S.  E.  914, 
15  Ga.  App.  254. 

(15)  In  a  broker's  action  for  commission  for  procuring  a  ten- 
ant, in  which  the  complaint  alleged  that  the  plaintiff  procured  a 
tenant  able  and  willing  to  carry  out  his  agreement,  and  erect  a 
twelve-story  building,  evidence  of  negotiations  by  the  prospective 
tenant  for  the  erection  of  a  15^  or  16-story  building  was  not  ad- 
missible.    Herron  v.  Cameron,  128  N.  Y.  Sup.  871,  144  App. 
Div.  43. 

(16)  In  an  action  for  brokerage  commission,  rejection  of  evi- 
dence of  the  actual  value  of  the  property  taken  by  defendant  in 
exchange;  held,  not  error,  where  the  parties  put  a  value  on  the 
property  in  making  the  trade.     Waddell  v.  Noser,  188  111.  App. 
302. 

(17)  What  plaintiff  said  in  regard  to  the  farm  before  his  em- 
ployment to  sell  it  is  inadmissible.     Stoner  v.  Nail,  150  S.  W. 
648,  150  Ky.  511,  mod.  opin.  on  re.,  148  S.  W.  8,  149  Ky.  124. 

(18.  Testimony  of  the  principal  that  sometime  after  the  date 
of  the  alleged  binding  agreement  between  himself  and  the  cus- 
tomers procured  by  the  broker,  he  had  made  a  proposition  to  a 
third  person  which  was  less  favorable  to  him  than  the  one  which 
it  was  claimed  he  had  declined  to  make  or  had  voided  when  made, 
was  not  competent  against  the  broker.  Hutchinson  v.  Plant,  105 
N.  E.  1017,  218  Mass.  148. 

(19)  In  an  action  to  recover  for  services  in  securing  a  tenant 
for  hotel  property  and  in  procuring  a  bond  from  such  tenant  to 


690  AMERICAN  LAW   HEAL   ESTATE   AGENCY. 

secure  the  payment  of  the  rent,  evidence  offered  by  defendant 
tending  to  show  that  after  the  lease  was  procured  plaintiff  loaned 
the  tenant  money  to  inaugurate  and  carry  on  his  business,  was 
properly  excluded,  as  it  related  to  a  matter  arising  after  the  exe- 
cution of  the  lease  and  the  completion  of  the  contract  involved 
in  the  action.  Eutz  v.  Obear,  115  P.  67,  15  Cal.  App.  435. 

(20)  On  an  issue  as  to  the  amount  contracted  to  be  paid  for 
commission  for  the  sale  of  land,  each  party  testified  to  a  different 
agreement,  but  differing  as  to  the  amount,  evidence  that  a  third 
party,  at  some  indefinite  time,  had  an  agreement  for  a  commis- 
sion, charged  less  than  that  claimed  by  one  party  and  greater 
than  that  claimed  by  the  other,  is  inadmissible.    McVey  v.  Coates, 
130  P.  661,  89  Kan.  135. 

(21)  In  broker's  action  for  commission,  evidence  to  show  that 
defendant  sought  to  vary  the  terms  of  written  agreement  between 
the  parties,  by  making  it  applicable  only  to  sell  to  railroad,  was 
not  admissible.    Freeman  v.  Van  Wageman,  101  A.  55,  —  N.  J. 
Sup.  — . 

(22)  In  an  action  by  a  broker  for  commissions,  evidence  that 
the  officers  of  the  purchaser  and  the  seller  of  the  property  were 
not  on  speaking  terms,  and  that  an  officer  of  the  purchaser,  in 
talking  with  the  seller  about  the  purchase,  pocketed  a  slip  of 
paper  with  the  price  of  the  property  marked  thereon,  which  the 
broker  had  received  from  the  seller  and  had  given  to  one  officer 
of  the  purchaser,  was  given  by  the  officer  to  another  officer  of  the 
purchaser;  held  inadmissible.    Jester  v.  Lee,  200  111.  App.  183. 

(23)  Where,  in  action  for  defendant's  breach  of  contract  made 
through  a  broker,  defendant  was  estopped  to  deny  authority  of 
broker,  evidence  tending  to  discredit  broker's  authority  was  im- 
properly received.    Portsmouth  Oil  Eefining  Co.  v.  Madrid  Cot- 
ton Oil  Co.,  77  S.  8,  —  Ala.  Sup.  — . 

(24)  Correspondence  between  loan  broker  and  mortgagee  who 
had  paid  the  amount  of  the  mortgage  to  broker,  when  he  did  not 
have  possession  of  mortgage,  but  had  transferred  it  to  his  undis- 
closed principal;  held,  inadmissible  to  show  he  was  a  broker  and 
the  undisclosed  principal.    Bailey  v.  Walters,  202  111.  App.  422. 

(25)  In  a  broker's  action  for  commission  on  sale  of  a  farm, 
where  defendant  owner  did  not  claim  that  certain  other  brokers 
had  anything  to  do  with  the  sale,  testimony  of  one  of  such  brokers 


PLEADINGS,  PRACTICE,  ETC.  691 

as  to  whether  or  not  he  had  had  the  farm  in  question  for  sale,  and 
whether  he  had  had  it  on  conditions,  and  with  knowledge  that 
another  broker  also  had  it  for  sale;  held,  inadmissible  to  show  no 
exclusive  agency  was  given  plaintiff  broker.  Thomas  v.  Wychoff, 
174  N.  W.  26,  —  Iowa  Sup.  — . 

(26)  In  a  broker's  action  for  commission,  evidence  of  transac- 
tion between  purchaser  and  prospective  purchaser  whom  the  bro- 
ker had  previously  introduced  to  owner,  was  inadmissible  to 
prove  purchaser  was  procured  by  broker.  Low  v.  Peddock,  220 
S.  W.  969,  —  Mo.  App.  — . 


CHAPTER  XI. 
EVIDENCE— IMMATERIAL  AND  IRRELEVANT. 

Sec.  784.    Fact  that  defendant  had  other  agents  not  instru- 
mental in  effecting  sale. 

In  an  action  for  commissions  for  procuring  a  purchaser  for 
land,  the  fact  that  defendant  had  other  agents  is  immaterial,  it 
not  being  contended  that  they  had  been  instrumental  in  bringing 
about  the  sale.  Rounds  v.  Alee,  116  Iowa,  345,  89  N.  W.  1098; 
Goin  v.  Hess,  102  Iowa,  140,  71  N.  W.  218;  0.  L.  &  E.  J.  Gross 
v.  Tillinghast,  86  A.  721,  35  E.  I.  298. 

Sec.  785.    In  an  action  for  commissions,  right  of  vendor  to 
convey  or  value  of  property. 

Where  a  broker  employed  to  purchase  specific  property  at 
a  fixed  price  had  brought  suit  against  his  principal  for  com- 
missions, and  the  latter  refused  to  accept  the  deed,  the  ven- 
dor's right  to  convey,  or  the  actual  value  of  the  property,  were 
held  not  to  be  essential  matters  of  inquiry,  where  the  broker 
had  acted  in  good  faith.  Wheeler  v.  Knaggs,  8  Ohio,  169. 

Sec.  786.    In  action  for  commissions,  that  broker  exceeded  au- 
thority by  making-  a  contract  of  sale. 

Where  defendant  employed  real  estate  brokers  to  find  a  pur- 
chaser for  lands,  the  fact  that  they  exceeded  their  authority 
by  making  a  contract  of  sale  is  not  material  in  an  action  to 
recover  their  commissions.  Fiske  v.  Soule,  87  Cal.  313,  25  P. 
430. 

Sec.  787.    In  action  against  agent  for  fraud,  whether  pre- 
tended borrower  shared  the  money. 

A  recovery  in  an  action  by  the  principal  against  the  broker 
for  fraudulent  representations  that  the  worthless  property  on 
692 


PLEADINGS,  PRACTICE,  ETC.  693 

Which  the  loan  was  made  was  good  security,  is  not  affected  by 
the  question  whether  he  shared  the  money  with  or  delivered 
any  part  of  it  to  the  pretended  borrower.  Rubens  v.  Mead, 
121  Cal.  17,  53  P.  432. 

Sec.  788.    Whether  the  contract  was  signed  before  or  after 
contract  for  exchange  was  signed. 

In  an  action  by  a  broker  to  recover  commissions  on  an  ex- 
change of  property  effected  by  him,  whether  the  written  agree- 
ment by  the  plaintiff  to  wait  for  his  commissions  until  title 
closed  was  signed  before  or  after  the  signing  of  the  contract 
of  exchange  was  immaterial,  where  all  the  terms  of  the  writ- 
ten contract  of  exchange  were  fully  agreed  on  on  the  preced- 
ing day,  the  subsequent  agreement  to  wait  for  the  accrued  com- 
missions being  unsupported  by  a  consideration.  Hough  v. 
Baldwin,  99  N.  Y.  S.  545,  50  Misc.  546.  See  also  Sec.  19. 

Sec.  789.    Where  broker  finds  purchaser,  the  reasonableness 

of  the  time. 

Where  the  broker  finds  a  purchaser  at  the  seller's  terms, 
while  still  employed,  the  reasonableness  of  the  time  which  he 
has  taken  to  do  so  is  immaterial.  Moore  v.  Boehm,  91  N.  Y.  S. 
125,  45  Misc.  622. 

Sec.  790.    In  an  action  for  selling  a  title  bond,  attempt  by 

seller  to  show  broker  part  owner  of  premises. 
A  bond  was  given  by  A.  to  convey  a  lot  of  land  at  a  price 
named  per  square  foot,  the  bond  was  assigned  to  B.,  who  em- 
ployed C.  to  find  a  purchaser  for  the  land,  agreeing  to  pay 
him  all  he  could  get  over  the  price  named  in  the  bond;  C.  sold 
the  land  at  a  higher  price  to  D.,  and  A.,  at  the  request  of  B., 
conveyed  the  land;  in  a  suit  brought  by  C.  against  B.  to  re- 
cover the  excess  over  the  price  named  in  the  bond,  B.  offered 
to  show  that  C.,  at  the  time  of  his  employment  as  agent  was 
interested  in  the  land  as  owner  or  part  owner,  and  did  not  dis- 
close this  fact  to  him,  and  contended  that  the  sale  of  the  land 
was  a  fraud  upon  him.  Held,  that  the  question  of  such  owner- 
ship was  immaterial.  Durgin  v.  Somers,  117  Mass.  55. 


694  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

Sec.  790a.    Evidence  that  party  other  than  defendant  owned 
bonds  held  immaterial. 

In  a  case  by  one  engaged  to  sell  bonds  on  a  commission,  evi- 
dence that  a  person  other  than  defendant  owned  the  bonds  was 
immaterial,  it  appearing  that  the  defendant  had  made  the  con- 
tract of  employment.  Ely  v.  Wilde,  122  P.  1022,  62  Or.  111. 

Sec.  791.    On  agreement  to  share  commissions  evidence  that 
plaintiff  tried  to  sell. 

Where  plaintiff  authorized  defendant  to  se1!  property  for 
which  plaintiff  was  agent,  the  profits  to  be  divided  equally  be- 
tween them,  but  did  not  transfer  the  exclusive  agency  to  de- 
fendant, an  attempt  on  plaintiff's  part  to  effect  a  sale  to  de- 
fendant's customer  was  not  inconsistent  with  his  contract  with 
defendant,  and  evidence  thereof  was  immaterial  in  an  action 
by  the  plaintiff  to  recover  his  share  of  the  profits  on  a  sale 
made  by  defendant.  Madler  v.  Pozorski,  124  Wis.  477,  102  N. 
W.  892;  Duff  &  Conger  v.  MaMey,  175  N.  Y.  Sup. 


Sec.  791a.    Evidence  as  to  how  long  agent  had  known  prop- 
erty prior  to  sale  was  immaterial. 

Where,  in  an  action  by  a  broker  for  commissions  for  pro- 
curing a  purchaser,  it  was  not  claimed  that  an  agent  of  the 
purchaser  learned  that  the  property  was  for  sale  until  after 
the  broker  had  visited  the  purchaser,  evidence  as  to  how  long 
the  agent  had  known  the  property  prior  to  the  time  of  sale 
was  immaterial.  Benedict  v.  Dakin  (111.  Sup.  '09),  90  N.  E. 
712. 

Sec.  792.    That  broker  failed  to  impart  the  name  of  the  pur- 
chaser. 

Where,  in  an  action  on  a  contract  for  a  division  of  a  bro- 
ker's profits,  there  was  evidence  that  defendant  sold  the  prop- 
erty to  a  purchaser  procured  by  plaintiff,  in  accordance  with 
the  contract  between  them  for  a  division  of  commissions,  and 
that,  at  the  time  of  the  sale  defendant  knew  that  plaintiff  had 
procured  a  purchaser,  it  was  immaterial  that  plaintiff  failed 
to  impart  to  defendant,  prior  to  the  sale,  the  name  of  the  per- 


PLEADINGS,  PRACTICE,  ETC.  695 

son  with  whom  plaintiff  had  been  negotiating,  and  to  whom 
the  property  was  subsequently  sold.  McCleary  v.  Willis,  35 
Wash.  676,  77  P.  1073.  See  also  Sees.  487,  525. 

Sec.  793.    Where  contract  must  be  in  writing1,  to  allege  de- 
fendant received  benefits. 

Where  the  petition,  in  an  action  by  a  real  estate  agent  to 
recover  commissions,  fails  to  show  a  written  contract,  as  re- 
quired by  statute,  the  fact  that  the  plaintiff  alleges  that  de- 
fendant received  the  benefit  of  his  services,  and  therefore  can 
not  be  relieved  of  his  liability  to  pay  for  the  same  is  imma- 
terial. Covey  v.  Henry,  71  Neb.  118,  98  N.  W.  434. 

Sec.  794.    In  an  action  for  commissions  for  purchasing,  amount 
paid  broker  by  vendor. 

In  an  action  by  a  broker  for  commissions  in  purchasing  lands 
for  defendants,  defendants  having  introduced  the  vendor  as 
a  witness,  and  he  having  testified  that  he  paid  commissions  to 
such  broker  for  effecting  the  sale,  it  was  not  error  to  exclude 
evidence  of  the  amount  paid  by  him,  it  being  immaterial.  Lindt 
v.  Schlitz  Brewing  Co.,  113  Iowa,  200,  84  N.  W.  1059. 

Sec.  795.    Where  averred  that  trade  was  made  by  D.,  whether 
he  received  compensation. 

Where  plaintiffs  claim  they  effected  an  exchange  of  defend- 
ant's property,  and  defendants  assert  that  the  trade  was 
brought  about  by  D.,  the  question  whether  D.  had  received 
compensation  for  his  services  was  properly  excluded  as  imma- 
terial. Creager  v.  Johnson,  114  Iowa,  249,  86  N.  W.  275; 
Sewell  v.  Cottison,  108  N.  Y.  S.  25,  123  App.  Div.  586 

Sec.  796.    In  an  action  for  the  value  of  personalty  for  effecting 

an  exchange  of  land,  value  of  the  latter. 
In  an  action  for  the  value  of  personalty,  which  plaintiff  was 
to  receive  for  effecting  an  exchange  of  land  of  defendant  for 
a  store  property,  and  which  plaintiff  had  not  received  because 
defendant  refused  to  complete  the  trade,  evidence  as  to  the 
value  of  the  land  was  properly  excluded  as  immaterial.  Distad 
v.  Shanklin,  15  S.  D.  507,  90  N.  W.  151. 


696  AMERICAN   LAW   EEAL  ESTATE   AGENCY. 

Sec.  797.     Where  owner  ratified  sale  by  attorney,  whether 
he  knew  all  the  terms. 

Where  one  authorizes  an  attorney  in  fact,  by  power  duly 
signed  and  acknowledged,  to  make  a  certain  contract  for  the 
purchase  of  land  with  certain  parties  and  of  a  certain  date, 
and  subsequently  ratifies  the  action  of  his  attorney,  it  is  im- 
material whether  he  knew  all  the  terms  and  conditions  of  the 
contract  at  the  time  it  was  made,  and  he  will  be  bound  by  the 
contract  made  by  such  attorney.  Rank  v.  Garvey,  66  Neb.  767, 
92  N.  W.  1025,  99  N.  W.  666. 

Sec.  798.    In  an  action  against  a  broker  to  account  for  part 
of  the  price,  the  value  of  the  property. 

Where,  in  an  action  against  a  broker  for  failure  to  account 
for  a  part  of  the  price  received  by  him,  the  issue  was,  whether 
the  broker  sold  the  land  to  the  purchaser  through  a  third  per- 
son, as  his  agent,  or  whether  he  sold  it  to  a  third  person  who 
resold  it  to  the  purchaser,  evidence  of  the  value  of  the  prop- 
erty at  the  time  of  the  sale  was  immaterial.  Buchanan  v. 
Randall  (S.  D.  Sup.  '06),  109  N.  W.  513. 

Sec.  79 8a.    That  owner  sold  to  broker's  customer  for  less  price 
was  immaterial. 

Where  owner  sells  to  a  customer  at  a  price  lower  than  offered 
to  same  customer  procured  by  broker,  good  faith  of  the  owner  is 
immaterial,  when  it  appears  that  owner  was  led  to  believe  that 
he  was  dealing  with  a  new  party.  Stone  v.  Kreis,  202  111. 
App.  43. 

Sec.  799.    Where  an  owner  sold  to  a  customer,  broker  could 
recover  although  he  failed  to  notify  the  owner. 

Where  an  owner  of  standing  timber,  after  employing  plain- 
tiff to  sell  the  same,  sold  it  himself  to  a  purchaser  procured 
by  plaintiff,  it  was  immaterial  to  plaintiff's  right  to  recover 
for  the  services,  that  the  owner  was  not  guilty  of  fraud  in  re- 
lation to  such  sale,  or  that  he  should  have  had  previous  knowl- 
edge that  the  purchaser  had  been  induced  to  buy  through  plain- 
tiff's efforts.  McDonald  v.  Cabiness,  100  Texas,  615,  98  S.  W. 
943,  affirmed  102  S.  W.  721.  Compare  Nance  v.  Smyth,  118 


PLEADINGS,   PHACTICE,   ETC.  697 

Tenn.  349,  99  S.  W.  698;  Quist  v.  Goodfellow,  99  Minn.  509, 
110  1ST.  W.  65;  McLaughlin  v.  Campbell  (N.  J.  Err.  &  App. 
'09),  74  A.  50.  Compare  Sec.  471.  See  also  Sec.  1009. 

Sec.  799a.    In  order  to  be  entitled  to  recover  commissions  it 
was  immaterial  whether  the  broker  was  the  agent. 

Where  the  owners  expressly  agreed  that  the  broker  should 
have  a  commission  in  case  of  a  sale  to  his  customer,  it  is  im- 
material, as  regards  his  right  to  commissions,  that  he  was  not 
their  agent.  Lawler  v.  Armstrong  (Wash.  Sup.  '09),  102  P. 
775. 

Sec.  799b.    Brokers  negotiating  an  exchange  not  bound  to  in- 
form one  of  the  parties  of  his  employment  by  the  other. 

Brokers  negotiating  an  exchange  of  properties  being  middle- 
men held  not  bound  to  inform  one  of  the  parties  of  their  em- 
ployment by  the  other.  Marks  v.  O'Donnell,  121  N.  Y.  S.  214. 

See  Sec.  578. 

Sec.  800.    Where  the  evidence  is  silent  as  to  the  broker  making 
previous  sales,  whether  he  had  a  license. 

Where  the  evidence  is  silent  as  to  whether  a  broker  was  en- 
gaged in  the  real  estate  business,  or  had  made  previous  sales, 
it  is  immaterial  whether  or  not  he  had  a  license  at  the  time 
of  the  sale  in  question.  Packer  v.  Sheppa/rd,  127  111.  App.  598. 
See  also  Sec.  576. 

Sec.  801.    In  an  action  by  a  broker  for  fee  for  purchasing, 
right  of  vendor  to  convey  and  value  of  the  land. 

Where  a  broker  employed  to  purchase  specific  property  at  a 
fixed  price  brought  suit  against  his  principal  for  commissions, 
on  the  latter  refusing  to  accept  a  deed  therefor  the  vendor's 
right  to  convey,  or  the  actual  value  of  the  property,  were  held 
not  to  be  essential  matters  of  inquiry,  where  the  broker  had 
acted  in  good  faith.  Wheeler  v.  Knaggs,  8  Ohio,  169. 

Sec.  801a.    Whether  or  not  the  party  to  be  charged  with  the 

commission  is  the  owner  of  the  land  is  immaterial. 
The  right  of  a  broker  to  recover  a  commission  for  making  a 
sale  of  land  is  purely  a  nmtter  of  contract;  and  where  a  valid 


698  AMERICAN   LAW   EEAL   ESTATE   AGENCY. 

contract  in  writing  has  been  made,  it  is  immaterial  whether 
or  not  the  party  to  be  charged  is  the  owner  of  the  land.  San- 
chez v.  Yorba,  8  Cal.  App.  490,  97  P.  205. 

Sec.  802.    Evidence  that  after  revocation  broker  produced  a 

responsible  purchaser. 

Where  an  agent's  authority  to  sell  his  principal's  land  has 
been  revoked,  whether  the  agent  afterwards  actually  secured 
a  purchaser  ready  and  able  to  buy  the  land  on  the  principal's 
terms  was  immaterial,  in  an  action  for  damages  for  the  revoca- 
tion, unless  on  the  issue  of  damages.  Mulligan  v.  Owens,  123 
Iowa,  285,  98  N.  W.  792. 

Sec.  802a.  Evidence  that  owner  sold  for  a  less  price  than  fixed 
in  agreement  with  broker  was  inadmissible. 

In  an  action  for  commissions  for  producing  a  purchaser  ready, 
willing  and  able  to  buy  on  the  terms  prescribed,  evidence  that 
the  owner  sold  for  a  less  price  than  that  fixed  by  the  agreement 
with  the  broker  was  not  admissible.  Justy  v.  Erro,  117  P.  575, 
16  Cal.  App.  519. 

Sec.  803.    Whether  the  agent  was  to  secure  a  purchaser  or 
make  a  sale,  where  owner  would  not  consummate. 

Whether  real  estate  agents  were  to  secure  a  purchaser  or 
make  a  sale  themselves  is  immaterial,  where  the  owner,  by  his 
conduct,  rendered  it  impossible  for  them  to  consummate  the 
sale.  Church  v.  Dunham,  14  Idaho,  776,  96  P.  203,  205. 

Sec.  803a.    Letter  between  third  parties  immaterial. 

In  an  action  by  a  real  estate  broker  to  recover  viommissions 
for  services  in  effecting  an  exchange  of  lands,  which  was  finally 
completed  by  other  brokers,  a  letter  from  one  of  these  other 
brokers  to  another  of  them,  offered  by  the  defendant  merely 
as  a  part  of  the  history  of  the  transactions  which  culminated 
in  the  sale,  may  be  excluded  as  immaterial  as  well  as  being 


PLEADINGS,  PRACTICE,  ETC.  699 

res  inter  olios.     Hall  v.   Grace,  179  Mass.  400,  60  N.  E.  932; 
Cessna  v.  Johnson,  122  N.  E.  444,  —  Mass.  Sup.  — . 

Sec.  804.    Statement  by  defendant  that  if  he  had  had  his  own 
way  he  would  have  sold  when  he  had  a  chance. 

In  an  action  for  commissions  for  procuring  a  purchaser  of 
land,  a  conversation  between  defendant  and  the  broker,  sev- 
eral months  after  the  contract  was  entered  into  between  them, 
in  which  defendant  stated  that  if  he  had  had  his  own  way 
he  would  have  sold  his  land  when  he  had  a  chance  to,  was 
irrelevant  and  immaterial.  Ewing  v.  Lunn  (S.  D.  Sup.  '08), 
115  N.  W.  527. 

Sec.  805.    In  a  suit  to  recover  deposit  money,  evidence  of  sub- 
sequent contract  irrelevant. 

An  agent  sold  a  tract  of  land  subject  to  the  ratification  of 
his  principal,  with  an  agreement  that,  if  not  ratified,  he  would 
refund  to  the  purchaser  the  money  paid  by  him ;  the  principal 
refused  to  ratify.  In  a  suit  brought  by  the  purchaser  for  the 
money  so  paid  by  him  Held,  that  evidence  of  a  subsequent 
contract  between  the  parties  was  irrelevant,  unless  it  was  pro- 
posed to  show  that  in  making  such  subsequent  contract  the 
matter  of  the  money  to  be  refunded  under  the  first  contract 
was  in  some  way  adjusted.  Evans  v.  George,  80  111.  51. 

Sec.  805a.    Judgment  stricken  out  as  irrelevant. 

A  judgment  in  favor  of  the  purchaser  against  the  vendor 
rescinding  the  contract  for  fraud,  is  not  res  judicata  as  to  the 
vendor's  broker,  so  as  to  entitle  him  to  plead  it  in  a  suit  for 
his  commission,  and  an  allegation  setting  up  the  judgment 
should  be  stricken  out  as  irrelevant.  Polak  v.  Rosenzweig  tiealty 
Co.,  116  N.  Y.  S.  38. 

Sec.  805b.    Bringing  of  prior  suit  covering  part  of  claim  in 
question  held  immaterial. 

Where  plaintiff,  in  an  action  for  broker's  services,  pleaded  the 
bringing  of  a  prior  suit  against  F.  for  $900,  covering  a  part  of 
the  claim  in  question,  the  bill  of  particulars  filed  in  such  suit, 


700  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

showing  the  specific  items  of  the  charge,  was  immaterial.     Dai- 
berg  v.  Jung  Brewing  Co.,  144  N.  W.  198,  155  Wis.  185. 

Sec.  806.    In  action  to  recover  from  an  agent  part  of  price, 
influence  of  defendant  over  vendor. 

In  an  action  by  vendees  against  the  agents  who  made  the 
sale  to  recover  that  part  of  the  price  retained  by  them,  with- 
out plaintiff's  knowledge,  the  issue  being  whether  defendants 
were  the  agents  of  plaintiffs  or  of  the  vendor,  proof  of  the 
value  of  the  property  sold  is  competent  to  explain  the  motive 
of  the  parties  to  the  contract,  and  evidence  that  the  action  was 
not  begun  until  after  the  defendants  had  dissolved  partner- 
ship and  become  their  business  rival  is  also  competent;  but 
evidence  as  to  the  motives  of  the  vendor  and  defendants'  influ- 
ence over  him,  is  irrelevant.  Duryea  v.  Vosburgh,  1  N.  Y.  S. 
833. 

Sec.  807.    Evidence   that   defendant  had   employed   another 
broker  who  tried  to  sell. 

Defendant's  evidence,  in  an  action  by  a  real  estate  broker 
for  commissions,  that  defendant  had  employed  another  broker 
who  attempted  to  dispose  of  the  land  to  a  purchaser,  and  who 
had  obtained  his  information  from  plaintiff,  is  rightly  excluded 
as  irrelevant.  Adams  v.  McLaughlin,  159  Ind.  23  64  N.  E.  462. 

Sec.  808.    In  a  suit  for  share  of  fees,  answer  alleging  broker 
worked  in  opposition. 

Plaintiff  alleged  that  he  was  authorized  by  the  owners  to 
sell  land,  and  that  he  agreed  to  divide  the  commissions  with 
defendant,  if  the  latter  would  find  a  purchaser;  that  defend- 
ant recovered  of  the  owners  the  commissions  on  a  sale  of  the 
land,  but  refused  to  pay  plaintiff  his  share;  defendant  al- 
leged that  during  the  negotiations  for  the  sale  of  the  land, 
plaintiff  worked  in  opposition  to  defendant,  and  endeavored 
to  make  a  sale  to  other  parties,  and  that  plaintiff  was  thereby 
estopped  from  claiming  that  he  was  jointly  interested  with  de- 
fendant in  selling  the  land.  Held,  that  the  plea  was  irrelevant 
and  properly  stricken,  there  being  nothing  in  the  case  to  indi- 


PLEADINGS,  PEACTICE,  ETC.  701 

cate  that  plaintiff  was  not  entitled  to  find  a  purchaser  himself. 
Wefel  v.  Sttilman,  151  Ala.  249,  44  S.  203. 

Sec.  809.    In  an  action  for  fee  for  clearing  title,  evidence  of 

commissions  for  selling  property. 

In  an  action  by  a  real  estate  dealer  to  recover  on  an  ex- 
press contract  whereby  defendant  agreed  to  pay  him  a  certain 
percentage  of  the  proceeds  of  sales,  in  consideration  of  services 
to  be  rendered  in  clearing  the  title  to  and  putting  property 
in  marketable  condition  to  effect  a  sale,  evidence  as  to  the 
customary  commissions  for  making  sales  of  property  is  irrele- 
vant. Jefferson  v.  Burham,  85  Fed.  949,  29  C.  C.  A.  481. 

Sec.  809a.     Conversation  not  in  presence  of  defendant  irrel- 
evant. 

Plaintiff  alleged  a  verbal  contract  by  which  he  was  to  ob- 
tain for  defendant  the  title  of  co-owners  of  a  mining  claim 
for  not  more  than  a  certain  sum,  his  commission  to  be  the 
difference  between  that  sum  and  the  price  asked.  Defendant 
alleged  that  unless  a  certain  sale  of  property  which  he  was  ne- 
gotiating was  effected,  plaintiff  was  to  have  nothing  for  his 
services,  and  that  the  sale  was  not  effected.  Held,  that  evi- 
dence of  what  a  witness,  who  was  in  no  way  connected  with 
defendant  and  was  not  present  at  the  conversation  during 
which  the  contract  was  made,  stated  to  plaintiff  about  his  un- 
derstanding with  defendant  before  plaintiff  went  to  see  de- 
fendant, was  irrelevant.  Huntoon  v.  Lloyd,  8  Mont.  283. 

Sec.  809b.    Advice  of  third  person  to  purchaser  held  to  be  im- 
material on  issue  of  procuring  cause  of  sale. 
On  the  issue  whether  a  broker  employed  to  procure  a  pur- 
chaser was  the  procuring  cause  of  the  sale,  evidence  that  the 
purchaser  sought  the  counsel  of  a  third  person,  and  resolved 
not  to  purchase  unless  the  third  person  approved  thereof,  was 
immaterial.    Oliver  v.  Katz,  131  Wis.  409,  111  N.  W.  509. 


702  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  809c.    Immaterial  and  irrelevant  evidence. 

(1)  The  question  whether  defendant's  demand  for  immediate 
payment  was  reasonable  is  immaterial,  in  the  absence  of  fulfill- 
ment by  plaintiff  of  all  other  conditions  on  the  original  contract. 
Wittever  v.  Hurwitz,  110  K  E.  433,  216  N.  Y.  259,  rev.  judg., 
143  N.  Y.  Supp.  1150,  158  App.  Div.  890,  re.  den.,  112  N.  E. 
1079,  217  N".  Y.  666. 

(2)  In  a  broker's  action  to  recover  compensation  for  obtaining 
a  purchaser  for  an  option  on  certain  land,  evidence  as  to  dealing 
between  defendant  and  the  landowner,  held  immaterial.     0.  W. 
Eerr  Co.  v.  Corry,  211  P.  647,  128  C.  C.  A.  151. 

(3)  In  an  action  on  a  note  given  to  a  broker  for  commissions 
in  negotiating  an  exchange  of  property,  evidence  of  the  rentals  of 
the  property  acquired  by  defendant  in  the  exchange  is  immaterial. 
Cervenka  v.  Hunter,  185  111.  App.  547. 

(4)  In  an  action  to  recover  broker's  commission  for  finding 
a  tenant  for  defendant,  refusal  to  permit  defendant  to  testify  to 
the  amount  of  rental  he  was  paying;  held,  not  error,  for  the 
reason  that  the  evidence  sought  to  be  elicited  had  little  bearing 
on  the  issues  involved.    Staff  v.  Steiger,  180  111.  App.  43. 

(5)  Whether  principal,  at  time  of  sale,  had  any  idea  that  the 
broker  had  any  claim  for  commission,  held  immaterial.    Howard 
v.  Street,  93  A.  923,  125  Md.  289. 

(6)  In  an  action  for  commission  for  negotiating  a  sale  of 
property,  evidence  as  to  whether  the  purchaser  was  the  owner  of 
any  property  in  a  certain  section  was  immaterial.    Clark  v.  Bon- 
ner,  104  N.  E.  494,  217  Mass.  201. 

(7)  In  an  action  for  broker's  commission,  evidence  as  to  time 
and  money  expended  in   finding   a  purchaser;   held  irrelevant, 
where  no  show  of  a  break  in  completion  of  the  trade  was  made. 
Newman  v.  Dunleavy,  149  P.  970,  51  Mont.  149. 

(8)  A  broker  suing  on  a  contract  for  commissions  on  sale  of 
real  estate,  without  restrictions,  may  not  show  that  the  owner 
subsequently  executed  a  deed,  without  restrictions,  to  prove  the 
contract  alleged.    Greene  v.  Agnew,  151  N.  W.  268,  160  Wis.  224. 

(9)  Where  broker  claimed  that  he  was  to  have  all  received  upon 
the   sale  over   $4,500,   evidence   that   defendant   had   previously 
listed  farm  for  sale  at  $4,500,  and  that  it  was  worth  only  $3,500 ; 


PLEADINGS,  PRACTICE,  ETC.  703 

held,  improperly  admitted.    Williams  v.  Otto,  148  N.  W.  367,  181 
Mich.  657. 

(10)  A  letter  from  the  purchaser  to  defendant's  attorneys  con- 
taining proposition  for  reselling,  and  stating  that  the  salesman 
of  the  plaintiff  broker  made  certain  representations  concerning 
the  property;   held,  properly  excluded  as   irrelevant.     Swift  v. 
Moore,  82  S.  E.  914,  15  Ga.  App.  254. 

(11)  In  an  action  against  principal  for  a  commission  on  sale 
of  realty,  letters  from  prospective  purchaser  to  his  attorney,  stat- 
ing that  he  did  not  desire  to  close  trade  with  defendant  unless  he 
acquired  an  adjoining  tract;  held  irrelevant.    Stout  v.  Thornhill, 
79  S.  154,  —  Ala.  App.  — . 


CHAPTER  XII. 
EVIDENCE  IN  GENERAL. 

Sec.  810.    Dissuasion — Evidence  that  failed  to  prove. 

On  the  issue  whether  the  owner  during  the  continuance  of 
an  option  given  by  him  to  a  broker  on  certain  real  estate  dis- 
suaded a  probable  customer  of  the  option  holder  from  pur- 
chasing from  him,  evidence  that  the  owner  and  the  customer 
had  several  interviews,  and  after  the  termination  of  the  op- 
tion entered  into  a  contract  to  accept  the  land,  does  not  prove 
dissuasion  on  the  part  of  the  owner.  Smith  v.  Lawrence,  98 
Me.  92,  56  A.  455. 

Sec.  811.    Whether  or  not  agent  was  a  regular  broker  does  not 

affect  the  value  of  his  services. 

Whether  or  not  an  agent  employed  to  sell  a  piece  of  land 
is  a  regular  broker,  does  not  affect  the  competency  of  evi- 
dence as  to  the  price  which  would  be  paid  a  broker  for  such 
services,  and  offered  for  the  purpose  of  showing  what  the 
agent's  services  were  worth.  Hollis  v.  Weston,  156  Mass.  357, 
31  N.  E.  483. 

Sec.  812.    In  an  action  for  procuring  lessee,  defendant  might 
show  that  lease  was  never  made. 

Plaintiffs,  real  estate  agents,  were  to  receive  certain  com- 
missions for  services  in  securing  a  lessee  for  defendant  upon 
agreed  terms,  and  they  procured  an  informal  agreement  for 
a  lease  to  be  signed  by  defendant  and  the  applicant  for  the 
lease.  Held,  that  defendant  might  show  by  parol  that  the  con- 
tract was  merely  provisional,  and  did  not  express  all  the  terms 
of  the  lease  to  be  entered  into  by  the  parties,  as  was  also  un- 
derstood by  plaintiffs,  and  that  the  lease  was  never  consum- 
mated, as  no  final  agreement  was  ever  made  between  defend- 
704 


PLEADINGS,  PRACTICE,  ETC.  706 

ant  and  the  lessee.     Buxton  v.  Seal,  49  Minn.  230,  51  N.  W. 
918.    See  also  Sec.  427. 

Sec.  813.    Real  estate  man  long  a  resident  of  the  town  com- 
petent to  testify  as  to  the  value  of  property. 
A  real  estate  man  who  has  long  resided  in  i  eertain  town 
and  has  property  listed  on  his  books  in  a  certain  addition,  is 
competent  to  testify  as  to  the  value  of  property  in  that  addi- 
tion.   Eyan  v.  K.  C.,  etc.,  R.  Co.,  Ill  Mo.  456,  20  S.  W.  234. 

Sec.  814.    Evidence  properly  excluded  that  broker,  three  years 

after  the  sale,  became  partner  of  purchaser. 
In  an  action  brought  by  B.,  an  agent,  to  recover  compensa- 
tion from  R.  for  services  in  selling  real  estate  of  the  latter, 
the  defendant  pleaded  the  general  issue,  and  that  at  the  time 
of  the  sale  B.  was  interested  as  a  partner  of  the  purchaser 
procured;  B.  admitted  that  he  had  acquired  an  interest  in 
the  property  after  the  sale,  but  denied  that  he  had  an  interest 
in  it  at  the  time  of  the  sale;  and  on  the  trial  below  R.  offered 
evidence  with  respect  to  the  price  received  by  B.  for  his  interest 
in  the  property  at  the  sale  thereof  made  by  the  latter  three 
years  after  the  sale  for  which  compensation  was  claimed  in 
the  suit;  the  evidence  was  offered  for  the  purpose  of  showing 
that  B.  was,  at  the  time  of  the  last  mentioned  sale,  a  partner 
in  the  purchase  made  thereat.  Held,  that  the  exclusion  of 
the  testimony  was  not  error.  Ruckman  v.  Bergholz,  38  N.  J. 
L.  531. 

Sec.  815.    Evidence  that  buyer  did  not  have  cash  but  able  to 

obtain  by  next  day,  able  to  buy. 

Where  the  written  contract  by  which  defendant  employed 
plaintiff  as  broker  to  sell  lands  fixed  the  selling  price  per  acre, 
and  provided  for  the  payment  of  a  certain  sum  in  cash  by  any 
purchaser  obtained,  evidence  that  the  purchaser  obtained  by 
plaintiff  under  the  offer  to  buy  at  the  price  named  in  the  con- 
tract did  not  have  in  his  possession  at  the  time  of  the  offer 
sufficient  funds  to  make  the  cash  payment  required,  but  could 
have  obtained  them  on  the  morning  of  the  next  day,  was  suffi- 
cient to  show  that  he  was  able  to  buy.  McDermott  v.  Mahoney, 


706  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

139  Iowa,  292,  106  N.  W.  925,  affirmed  115  N.  W.  32.    See  also 
Sec.  464. 

Sec.  816.    Witnesses  for  defendant  may  be  questioned  as  to  the 
interest  purchasers  had  in  the  land. 

In  an  action  on  account  for  commissions  transferred  to 
plaintiff,  a  witness  for  defendant  may  be  questioned  as  to  the 
interest  the  purchasers  had  in  the  land,  and  as  to  what  in- 
duced defendant  to  make  the  sale,  such  questions  being  perti- 
nent to  matters  introduced  by  plaintiff.  Ivy  Coal  &  Coke  Co. 
v.  Long,  139  Ala.  535,  36  S.  722. 

Sec.  817.    In  cross-examination  it  was  proper  to  ask  assignor 

about  transaction. 

In  an  action  on  an  account  for  commissions  transferred  to 
plaintiff,  it  was  proper  on  cross-examination  to  question  the 
assignor,  who  rendered  the  services,  relative  to  the  negotia- 
tions between  the  purchasers  of  land,  the  plaintiff,  and  him- 
self as  to  the  transaction  as  consummated.  Id. 

Sec.  817a.    On  cross-examination  defendant  not  required  to 
answer  as  to  whether  note  had  been  paid. 

In  an  action  for  commissions  for  a  sale  of  land  under  a  con- 
tract alleged  to  have  been  made  with  defendant's  agent,  where 
there  was  evidence  tending  to  show  that  the  contract  was  en- 
tered into  between  the  agent  and  defendant  for  an  exchange 
of  land  by  each,  defendant  agreeing  to  pay  the  agent  a 
certain  commission,  the  defendant  testified  that  he  settled  with 
the  agent  and  gave  him  a  note  for  the  amount  before  he  had 
any  knowledge  that  plaintiff  was  in  any  manner  connected 
with  the  transaction,  plaintiff  could  not  on  cross-examination, 
require  the  defendant  to  answer  as  to  whether  the  note  had 
been  paid.  Quale  v.  Hazel,  19  S/D.  483,  104  N.  W.  215. 

Sec.  817b.    On  cross-examination  defendant  could  show  he  had 

become  surety  on  plaintiff's  note  to  a  bank. 
In  an  action  for  a  real  estate  broker's  commissions  defend- 
ant could  show,  on  plaintiff's  cross-examination  that  defend- 
ant had  become  a  surety  on  plaintiff's  note  to  a  bank,     fates. 


PLEADINGS,  PRACTICE,  ETC.  707 

v.  Bratton  (Tex.  Civ.  App.  '08),  111  S.  W.  416.    See  also  Sec. 
1047. 

Sec.  818.    Evidence  of  the  sale  of  property,  to  show  defend- 
ant's good  faith  in  refusing  loan. 

In  an  action  by  a  loan  broker  for  commissions  against  a 
client  who  had  refused  to  complete  a  loan  after  a  lender  had 
been  secured,  evidence  that  the  client  had  sold  the  property 
to  supply  him  with  the  needed  funds,  is  admissible  as  bearing 
on  the  credibility  of  his  testimony  that  he  had  refused  the 
loan  because  an  existing  mortgage  could  not  be  paid  off  be- 
fore maturity.  Payne  v.  Williams,  178  N.  Y.  589,  70  N.  E. 
1104. 

Sec.  818a.    Acts  of  purchaser  admissible  on  question  of  good 
faith. 

While  the  acts  of  a  purchaser  procured  by  a  broker  em- 
ployed to  obtain  a  purchaser  subsequent  to  the  time  fixed  for 
the  performance  of  the  contract  can  not  affect  the  rights  of 
the  broker  to  his  commissions,  such  acts  may  be  looked  to  to 
determine  whether  what  the  purchaser  did  to  establish  the  bro- 
ker's rights  was  done  in  good  faith,  and  whether  such  prior 
acts  had  the  legal  effect  claimed  for  them.  Little  v.  Herzinger, 
34  Utah,  337,  97  P.  639. 

Sec.  819.    Defendant  may  show  influence  other  agents  exerted 

on  sale. 

In  an  action  for  commissions,  under  a  contract  of  agency 
for  effecting  a  sale  of  real  estate,  the  defendant,  on  the  issue 
of  who  effected  the  sale,  is  entitled  to  show  the  influence  other 
agents  exerted  on  the  sale  before  and  after  the  contract  with 
plaintiff.  Smiley  v.  Bradley,  18  Colo.  App.  191,  70  P.  696. 

Sec.  820.    Evidence  of  dealings  to  establish  relation  of  prin- 
cipal and  agent. 

In  an  action  for  a  real  estate  broker's  commissions  for  ne- 
gotiating a  purchase  which  defendant  refused  to  consummate, 
evidence  that  before  the  agreement  for  purchase  was  reached 
plaintiff  had  submitted  an  offer  to  the  owner  as  the  purported 


708  AMEEICAN  LAW   EEAL   ESTATE   AGENCY. 

agent  of  defendant,  was  admissible  to  show  the  relationship 
of  the  parties  and  plaintiff's  offer  to  purchase  the  property 
for  defendant.  Banna  v.  Espalla,  148  Ala.  313,  42  S.  443. 

Sec.  821.    Where  defendant  demanded  return  of  contract,  can 
show  it  referred  to  another  transaction. 

Where,  in  an  action  for  a  broker's  commissions  for  nego- 
tiating a  purchase  which  defendant  refused  to  consummate, 
there  was  testimony  for  plaintiff  that  defendant  had  demanded 
the  return  of  a  writing  executed  September  10,  alleged  to  show 
a  contract  of  employment,  at  the  same  time  recognizing  his 
obligation  to  pay  plaintiff  a  commission,  defendant  should  have 
been  permitted  to  show  that  the  paper  he  demanded  referred 
to  another  transaction,  and  that  at  the  same  time  plaintiff 
presented  a  statement  for  other  commissions,  not  including  the 
one  sued  on,  and  did  not,  prior  to  October  20,  make  demand 
for  the  sum  claimed.  Id. 

Sec.  822.    Plaintiff  to  purchase  must  show  seller  able  to  con- 
vey a  good  title. 

Under  a  contract  whereby  defendant  agreed  to  pay  plain- 
tiff $100  for  obtaining  a  sale  to  him  of  certain  real  property, 
plaintiff,  in  an  action  for  the  commission,  must  show  that  the 
person  produced  as  such  owner  was  willing  to  sell  at  the  stated 
price,  and  able  to  convey  a  merchantable  title.  Anderson  v. 
Johnson  (N.  D.  Sup.  '07),  112  N.  W.  139.  Compare  Sec.  290. 

Sec.  822a,    Not  sufficient  for  broker  to  show  that  his  act  was 
only  one  of  a  chain  of  causes  producing  sale. 

A  broker  must  show  that  his  acts  were  the  producing  cause  of 
the  sale,  and  it  is  not  sufficient  to  show  that  his  act  was  merely 
one  of  a  chain  of  causes  producing  the  sale.  F.  H.  &  C.  B.  Oer- 
hardt  R.  E.  Co.  v.  Marjonie  R.  E.  Co.,  129  S.  W.  419,  144  Mo. 
App.  620;  Grain  v.  Miles,  134  S.  W.  52,  154  Mo.  App.  338. 

Sec.  823.    Evidence  of  defendant  tending  to  show  that  option 
was  only  an  agreement. 

Where,  in  a  suit  for  a  commission  for  finding  a  purchaser 
for  land,  plaintiff  alleged  that  the  owner  listed  it  with  bro- 


PLEADINGS,  PRACTICE,   ETC.  709 

kers,  who  listed  it  with,  plaintiffs  firm,  with  the  owner's  con-, 
sent,  the  owner  could  show  that  shortly  before  the  alleged  list- 
ing with  such  brokers,  he  gave  them  an  option  to  purchase  a 
tract,  including  the  land  on  account  of  which  the  commission 
was  claimed,  as  tending  to  .corroborate  the  owner's  claim  that 
the  option  contract  was  the  only  agreement  between  him  and! 
the  brokers.  Sterling  v.  De  Laune  (Tex.  Civ.  App.  '07),  105 
S.  W.  1169. 

Sec.  824.    Evidence  of  prior  contract  as  to  compensation  com- 
petent where  conflicting. 

In  an  action  by  a  real  estate  broker  to  recover  commissions, 
where  the  evidence  is  conflicting  as  to  the  rate  of  compensa- 
tion, evidence  of  a  prior  contract  between  the  same  parties 
for  the  sale  of  the  same  property  and  of  the  compensation 
therein  agreed  to  be  paid  is  competent.  Cobb  v.  Dunlevie,  63 
W.  Va.  398,  60  S.  E.  384. 

Sec.  825.    Affirmative  answer  of  purchaser  that  he  was  ready* 
etc.,  not  objectionable  as  an  opinion. 

In  an  action  by  a  broker  for  commissions  for  procuring  a 
purchaser,  the  affirmative  answer  of  the  purchaser  procured 
by  the  broker  to  the  question  as  to  whether  he  was  ready, 
willing  and  able  to  comply  with  the  terms  of  the  sale,  was  not 
objectionable  as  the  opinion  of  a  witness.  Clark  v.  Wilson, 
91  S.  W.  627,  41  Tex.  Civ  App.  450.  Compare  N.  W.  Packing 
Co.  v.  Whitney  (Cal.  App.  '07),  89  P.  981. 

Sec.  826.    Question  to  assumed  principal,  whether  her  husband 

was  acting  as  her  agent,  not  objectionable. 
A  question  addressed  to  an  assumed  principal  in  which  she 
is  asked  whether  her  husband  was  acting  as  her  agent,  is  not 
objectionable    as    calling   for   a    legal    conclusion.      Knapp   v. 
Smith,  27  N.  Y.  277. 

Sec.  827.    Conversations  with  purchaser's  agent  allowable  to 
show  unwillingness  of  purchaser. 

As  tending  to  show  that  plaintiff  procured  a  purchaser  for 
defendant's  timber,  he  may  testify  as  to  conversations  with 


710  AMERICAN   LAW    SEAL   ESTATE   AGENCY. 

the  purchaser's  agent,  at  the  appointed  time  and  place  for 
closing  up  the  purchase,  showing  his  unwillingness  to  buy  at 
the  stipulated  terms.  Obenauer  v.  Solomon,  151  Mich.  570, 
115  N.  W.  696,  15  D.  L.  N.  31. 

Sec.  828.    Defendant  may  show  another  agent  employed  by 

him  was  the  procuring  cause  of  the  sale. 
Where  a  real  estate  agent  sues  for  commissions,  defendant 
is  entitled  to  show  that  the  efforts  of  plaintiff  were  not  the 
procuring  cause  of  the  sale,  and  to  do  this  he  may  introduce 
evidence  to  the  effect  that  the  efforts  of  another  agent  em- 
ployed by  him  were  the  procuring  cause.  Mead  v.  Arnold, 
131  Mo.  App.  214,  110  S.  W.  656.  See  also  Sec.  896. 

Sec.  829.    Defendant  entitled  to  introduce  in  evidence  letters 
on  the  question  of  plaintiff's  employment. 

Plaintiff,  in  an  action  by  a  broker  for  commissions  for  the 
sale  of  an  office  building,  who  had  for  nine  years  been  defend- 
ant's agent  for  handling  certain  real  estate  for  him,  claimed 
authority,  never  revoked,  to  sell  the  building,  which  defendant 
denied  ever  having  been  given;  four  years  before  the  sale  they 
had  an  agreement  as  to  plaintiff's  management  of  this  and 
other  property  of  defendant,  and  plaintiff  wrote  defendant  a 
letter  reciting  that,  in  accordance  with  their  conversation  of 
that  date,  he  thereby  stated  his  understanding  of  their  agree- 
ment as  to  commissions  he  was  entitled  to  for  the  management 
of  defendant's  properties,  the  one  in  question,  with  another, 
being  named,  following  which  were  the  terms,  the  commissions, 
and  the  duties  to  be  performed,  with  no  statement,  however, 
with  respect  to  sales;  defendant's  letter  in  reply  stated  that 
plaintiff's  letter  was  practically  correct,  then  gave  the  detailed 
terms  of  the  employment  of  plaintiff  as  agent,  and  concluded, 
"this  arrangement  is  not  to  be  considered  as  including  a  sale 
of  the  property;  I  reserve  the  right  to  deal  direct  in  case  of 
a  sale."  Held,  that  defendant  was  entitled  to  have  both  let- 
ters introduced  in  evidence  on  the  question  of  employment,  and 
it  was  not  enough  to  admit  the  concluding  paragraph  of  de- 
fendant's letter,  it  losing  much  of  its  effect  when  standing 


PLEADINGS,  PRACTICE,  ETC.  711 

alone.     Willard  v.  Ferguson,  110  N.  Y.  S.  909,  125  App.  Div. 
868.    See  also  Sec.  564. 

Sec.  830.    Proof  insufficient  to  support  recovery  for  the  sale 
of  a  house. 

Defendant,  in  an  action  by  a  broker  for  commissions,  as 
owner  of  two  semi-detached  houses,  gave  a  broker  a  written 
authority,  without  date,  to  sell  the  property,  without  describ- 
ing it;  defendant  testified  that  the  written  authority  was  for 
the  sale  of  the  second  house,  and  that  it  was  given  after  the 
first  house  had  been  sold;  six  disinterested  witnesses  corrobo- 
rated defendant,  and  the  purchaser  of  the  first  house  testified 
that  she  never  saw  the  broker  until  after  she  had  been  nego- 
tiating with  defendant  personally.  Held,  insufficient  to  sup- 
port a  recovery  of  commissions  for  effecting  a  sale  of  the  first 
house.  Herweg  v.  MoUtor,  110  N.  Y.  S.  241,  126  App.  Div.  927. 
Sec.  831.  Any  parol  evidence  relied  on  to  make  a  binding- 
contract  must  be  clear  and  decisive. 

Any  parol  evidence  relied  on  to  establish  the  authority  of  a 
broker  to  make  a  binding  contract  must  be  clear  and  decisive. 
Stengel  v.  Sergeant  (N.  J.  Eq.  '08),  68  A.  1106;  Keim  v. 
O'Reilly,  54  N.  J.  Eq.  418,  34  A.  1073 ;  Spengler  v.  Sonnenberg, 
88  0.  S.  192.  See  also  Sec.  18. 

Sec.  831a.    Where  uncertainty  exists  identity  may  be  estab- 
lished by  evidence. 

When  the  identity  of  a  thing  referred  to  in  a  written  con- 
tract is  left  uncertain,  it  is  proper  to  hear  evidence  to  de- 
termine which  one  of  two  or  more  things  answering  the  de- 
scription was  meant  by  the  parties.  Pedbody  v.  Dewey,  51 
111.  App.  260. 

Sec.  832.    Evidence  that  fell  short  of  authorizing  the  agent  to 

sign  a  contract  of  sale. 

After  defendant  had  written  several  letters  to  her  agent  in- 
structing him  to  sell  her  property  for  a  specified  price,  the 
agent  wrote  her  that  several  had  declined  her  proposition,  but 
that  he  was  dealing  with  one  who  would  pay  a  price  less  than. 


712  AMERICAN   LAW   EEAL   ESTATE   AGENCY. 

that  specified;  she  wired  that  she  would  sell  for  a  sum  be- 
tween the  specified  and  offered  prices,  if  a  sale  could  be  made 
before  a  certain  time;  the  agent  sent  the  telegram  to  the  third 
person,  who  replied  that  he  would  not  increase  his  offer,  ask- 
ing the  agent  to  submit  it  again,  and  nothing  more;  this  the 
agent  did,  advising  the  defendant  to  accept  the  offer;  but  she 
instead  of  accepting,  wired  a  third  price  at  which  she  would 
sell;  finally,  upon  the  agent's  informing  her  that  he  could  do 
no  better  than  the  price  offered,  she  telegraphed  him  that  she 
would  sell  for  such  price,  but  would  only  pay  half  the  com- 
missions, and  asked  him  to  wire  in  case  of  acceptance.  Held, 
that  defendant's  letters  did  not  clearly  authorize  the  agent  to 
make,  himself,  a  contract  of  sale  binding  on  the  principal, 
even  on  the  terms  given  therein.  Stengel  v.  Sergeant  (N.  J. 
Eq.  '08),  68  A.  1106. 

Sec.  833.    Oral  evidence  allowable  to  establish  an  independent 

agreement  to  written  contract. 

A  contract,  where  the  owner  of  real  estate,  in  order  to  in- 
duce an  agent  to  accept  a  stipulated  sum  for  his  services  in 
effecting  an  exchange,  agreed  to  pay  him  more  if  the  sale 
proved  satisfactory,  could  be  established  by  parol  evidence  aa 
an  independent  agreement,  though  the  stipulation  for  payment 
of  the  first  sum  was  in  writing.  Blair  v.  Slosson,  27  Tex.  Civ. 
App.  403,  66  S.  W.  112;  Bradley  v.  Bower  (Neb.  Sup.  '04), 
99  N.  W.  490. 

Sec.  833a.     Contract  between  owner  and  purchaser  not  evi- 
dence that  broker  found  purchaser. 

A  written  agreement  by  prospective  purchasers  with  the 
owner  of  land  to  purchase  it  for  a  stated  price  is  not  suffi- 
cient proof,  in  an  action  by  the  real  estate  broker  for  his  com- 
missions, that  he  procured  the  purchasers,  since  that  agree- 
ment is  conclusive  only  between  the  parties  to  it.  Folinsbee 
v.  Sawyer,  157  N.  Y.  196,  51  N.  E.  994. 

Sec.  833b.    Court  may  receive  evidence  after  motion  to  dis- 
miss petition  for  failure  of  proof  has  been  made. 

After  plaintiff's  evidence  was  closed  a  motion  to  dismiss  for 
failure  of  proof  was  continued  until  the  following  day,  at 


PLEADINGS,  PRACTICE,  ETC.  713 

which  time  plaintiff  offered  to  show  that  his  principal  knew 
of  the  contract  to  divide  commissions.  Held,  that  the  evidence 
should  have  been  received..  Dearing  v.  Sears,  3  N.  Y.  S.  31. 

Sec.  833c.     Evidence  of  contract  material  to  determine  its 
terms. 

Where  the  evidence  was  conflicting  as  to  the  terms  of  a  bro- 
ker's contract,  whether  the  contract,  as  claimed  by  the  broker 
was  harsh  and  unreasonable,  was  material  only  to  determine 
the  terms  of  the  contract  in  fact.  Lee  v.  Conrad  (Iowa  Sup. 
'08),  117  N.  W.  1096. 

Sec.  833d.    Broker  must  prove  contract  as  pleaded,  perform- 
ance, breach  by  defendant,  and  measure  of  recovery. 

In  an  action  for  broker's  commissions,  plaintiff  must  prove  the 
contract  as  pleaded,  and  show  performance  and  breach  by  defend- 
ant, and  the  measure  of  recovery,  as  alleged.  Hill  v.  Dakin,  141 
P.  175,  92  Kan.  650. 

Character  of  broker's  relation  to  the  transaction  may  be  proved 
by  direct  and  positive  evidence,  or  may  be  inferred  from  facts 
and  circumstances  proved.  Johnson  v.  Schrepferman,  119  N".  E. 
494,  —  Ind.  App.  — . 

Sec.  834.    Declarations  during  the  negotiations  with  purchaser 
are  admissible  as  part  of  the  res  gestae. 

In  an  action  for  a  broker's  commissions,  declarations  of  de- 
fendant's agents  as  to  the  broker's  commissions,  made  at  the 
time  they  were  negotiating  and  closing  the  deal  with  the  pur- 
chaser found  by  the  broker,  are  admissible  as  part  of  the  res 
gestae.  Fritz  v.  Chicago  Grain  &  Ele.  Co.,  136  Iowa,  699,  114 
N.  W.  193 ;  Donnder  Petroleum  Co.  v.  Clay,  267  P.  45.  Mechem 
on  Ag.,  Sec.  715. 


714  AMERICAN   LAW   REAL   ESTATE  AGENCY. 

Sec.  835.    Declarations  of  owner  after  the  sale  inadmissible 
as  part  of  the  res  gestae. 

In  an  action  in  interpleader  when  the  issue  between  the  par- 
ties is  as  to  the  right  to  commissions  for  the  sale  of  real  estate, 
the  declarations  of  the  owner  of  the  property  sold,  made  some 
time  after  the  sale  has  been  effected,  and  in  the  absence  of 
defendant  to  the  effect  that  he  thought  plaintiff  was  entitled 
to  the  commission,  are  inadmissible.  Shipman  v.  Freeh,  3  N. 
Y.  S.  932,  15  Daly,  151. 

Sec.  836.    Declarations. 

The  expression  of  opinions  by  the  court  as  to  the  material- 
ity of  evidence  in  ruling  upon  offers  of  testimony,  are  not 
usually  proper  objects  of  exception,  but  declarations  or  state- 
ments may  be  assumed  by  the  court,  in  the  presence  of  the 
jury,  with  respect  to  its  weight  and  materiality,  as  to  be  prej- 
udicial and  ground  of  exception  by  the  aggrieved  party.  Haug 
v.  Hangan,  51  Minn.  558,  53  N.  W.  874.  An  agent's  authority 
can  not  be  proved  by  his  declarations,  nor  by  his  acts  done 
without  the  knowledge  or  authority  of  his  principal.  Whit- 
ney v.  Lake,  91  Pa.  St.  349;  Eastla-nd  v.  Maney,  36  Tex.  Civ. 
App.  147,  81  S.  W.  574;  Ehrenworth  v.  Putnam  (Tex.  Civ. 
App.  1900),  55  S.  W.  190.  A  person,  not  in  actual  possession 
but  authorized  to  sell,  is  a  mere  broker,  and  his  declarations 
can  not  be  admitted  to  affect  the  title  of  his  principal.  Pier 
v.  Duff,  63  Pa.  St.  59.  In  an  action  for  deceit  arising  out 
of  an  exchange  of  properties  through  a  broker  acting  for  de- 
fendant, evidence  that  defendant  stated  that  his  broker  had 
made  a  mean  trade  for  him,  and  that  he  had  made  a  poor 
trade,  warrants  a  finding  that  such  broker  was  acting  for  de- 
fendant in  effecting  the  exchange.  Arnold  v.  Teal,  182  Mass. 
1,  64  N.  E.  413. 

The  question  of  whether  a  broker  employed  to  procure  a 
purchaser  was  the  efficient  cause  of  the  sale,  or  whether  the 
means  employed  by  him  and  his  efforts  resulted  in  a  sale, 
must  be  deduced  from  the  facts  relating  to  the  transaction, 
and  not  from  the  conclusion  of  a  witness.  Geiger  v.  Kiser 
(Colo.  Sup.  '10),  107  P.  267. 


PLEADINGS,  PRACTICE,  ETC.  715 

Sec.  837.    Self-serving  declarations  inadmissible  as  evidence. 

In  an  action  for  commissions  by  a  real  estate  broker  on  a 
contract  under  which  it  had  earned  its  commissions,  where  the 
contract  of  sale  was  signed,  defendant's  self-serving  declara- 
tion that  the  payment  of  commissions  was  to  await  the  de- 
livery of  the  deeds  was  of  no  effect.  Dike  v.  Hadght,  108  N. 
Y.  S.  1066.  In  an  action  for  a  broker's  commissions,  a  state- 
ment by  plaintiff  as  to  a  sale  of  the  land,  and  what  he  would 
be  entitled  to,  was  self-serving  and  inadmissible.  Leutschner 
v.  Patrick  (Tex.  Civ.  App.  '07),  103  S.  W.  664. 

In  an  action  for  commissions  for  the  sale  of  defendant's 
land,  testimony  of  plaintiff  that  he  expected  to  be  paid  for 
the  alleged  services  was  properly  excluded.  Lotto,  v.  Lockman, 
139  Iowa,  626,  117  N.  W.  962. 

Sec.  838.    Admissions  against  interest. 

In  an  action  by  a  real  estate  broker  for  commissions,  defend- 
ant's admission  that  plaintiff  procured  the  sale,  as  appears  in 
the  contract  between  the  vendor  and  purchaser,  was  evidence 
for  the  plaintiff.  Dike  v.  Hadght,  108  N.  Y.  S.  1066. 

Where,  in  an  action  by  a  broker  for  commissions  on  a  sale 
of  real  estate,  defendant's  answer  admitted  the  employment 
of  plaintiff  as  a  broker,  and  it  appeared  that  the  contract  of 
exchange  of  properties  negotiated  by  plaintiff  was  signed 
through  his  efforts,  these  facts  took  the  case  out  of  the  purview 
of  the  Penal  Act  making  it  a  misdemeanor  for  one  to  offer 
real  estate  for  sale  without  written  authority.  Hough  v.  Bald- 
win, 99  N.  Y.  S.  545,  50  Misc.  546. 

In  a  broker's  action  for  compensation,  declarations  against 
interest  by  one  who  would  share  in  the  broker's  commissions, 
and  was  therefore  beneficially  interested  in  the  result  of  the  ac- 
tion, were  admissible  in  evidence.  Kinncme  v.  Conroy  (Wash. 
Sup.  '09),  101  P.  223. 


716  AMERICAN  LAW   EEAL  ESTATE  AGENCY. 

Sec.  838a.    Long  lapse  of  time  in  bringing  suit  circumstance 
bearing  on  the  weight  of  evidence. 

Where  nearly  six  years  had  elapsed  before  suit  brought  for 
broker's  services,  but  limitations  had  not  run,  such  lapse  of  time 
may  be  considered  as  bearing  on  the  weight  of  the  evidence.  Dai- 
berg  v.  Jung  Brewing  Co.,  144  N.  W.  198,  155  Wis.  185. 

Sec.  838b.    Evidence  that  failed  to  establish  that  minds  of 
parties  met  on  amount  of  broker's  commission. 

In  a  broker's  action  for  commission  involving  issue  whether 
owners  had  by  express  contract  agreed  to  pay  a  certain  commis- 
sion, telegram  by  prospective  purchaser  to  owners  stating  commis- 
sion wanted  by  broker;  held  competent,  in  view  of  undisputed 
evidence  that  broker  had  not  advised  such  prospective  purchaser 
as  to  commission  he  was  expecting,  to  establish  amount  of  commis- 
sion that  owner  had  in  mind,  and  that  minds  of  parties  never  met 
on  amount  claimed  by  broker.  Parker  v.  lAndsey,  176  N".  W. 
1018,  —  S.  D.  Sup.  — . 


CHAPTER  XIII. 
ESTOPPELS. 

Sec.  839.    Estoppel  by  representations  or  conduct. 

One  may  be  estopped  by  his  representations  or  conduct  from 
repudiating  a  transaction.  Christensen  v.  Wooley,  41  Mo.  App. 
53 ;  Dutcher  v.  Empire  League,  113  N".  Y.  S.  1083 ;  Fonch  v.  Wil- 
son, 59  Ind.  13;  Elsea  v.  Fassler,  154  P.  1067,  29  Gal.  App.  187; 
McKiblin  v.  Wilson,  182  P.  638,  —  Kan.  Sup.  — ;  Thornhill  v. 
Masurca,  216  S.  W.  810,  —  Mo.  App.  — ;  Goodwin  v.  Riddle,  85 
S.  433,  —  Ala.  Sup.  — ;  De  la  Cuesta  v.  Armstrong  Holding  Co., 
192  P.  135,  —  Cal.  App.  — ;  Greeriberg  v.  SchwinsU,  179  N.  W. 
234,  —  Mich.  Sup.  — . 

Sec.  840.    Objecting  on  one  ground  estopped  to  set  up  another. 

Where  defendant  authorized  a  broker  to  sell  certain  lots 
for  $1,800  cash,  and  the  broker  sold  for  $50  cash,  and  the  re- 
mainder on  delivery  of  the  deed  and  abstract,  but  defendant 
refused  to  complete  the  sale,  claiming  that  the  authorization  was 
$1,800  net  to  him,  without  deduction  of  the  broker's  commis- 
sions, the  defendant  was  estopped  subsequently  to  assert,  in 
an  action  brought  by  the  broker  to  recover  compensation  for 
his  services,  that  he  was  not  bound  to  pay  the  broker,  because 
the  sale  did  not  comply  with  his  instructions  as  to  payment 
of  price.  Donley  v.  Porter,  119  Iowa,  542,  93  N.  W.  574; 
Mooney  v.  Elder,  56  N.  Y.  238;  Railway  Co.  v.  McCarthy,  96 
U.  S.  258,  2J37;  Fuller  v.  Brady,  22  HI.  App.  174;  Fiske  v. 
Sirile,  87  Cal.  313,  25  P.  430;  Grouse  v.  Rhodes,  50  HI.  App. 
120;  Johnson  v.  Wright,  124  Iowa,  61,  99  N.  W.  103;  Lettiere 
v.  BlacJcman,  187  111.  App.  336;  Johnson  v.  Stewart  &  Hay  Bdg. 
Co.,  153  S.  W.  511,  171  Mo.  App.  543;  Braniff  v.  Baier,  165  P. 
816,  101  Kan.  117.  See  also  Sec.  246. 

In  other  jurisdictions  it  is  held  that  unless  the  broker  has  suf- 
fered injury  by  reason  of  the  defendant  not  objecting  at  the  time 

717 


718  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

upon  the  ground  subsequently  sought  to  be  asserted,  the  defendant 
may  still  avail  himself  of  the  defense.  The  List  &  Son  Co.  v. 
Chase,  80  0.  St.  42;  Peters  v.  Anderson,  88  Va.  1051,  14  S.  E. 
974;  Provident  Tr.  Co.  v.  DarraugJi,  168  Ind.  29,  78  K  E.  1030; 
Stearns  v.  Jennings,  128  Wis.  379,  107  N.  W.  327,  17  Am.  &  Eng. 
Ann.  Gas.  63,  64;  Perry  v.  Mt.  Hope  Iron  Co.,  16  R.  I.  318,  51 
A.  87. 

Defendant,  who  contracted  to  pay  plaintiff  a  certain  amount 
brokers'  commissions  if  plaintiff  would  buy  for  him  the  coal 
on  a  certain  farm,  is  not  estopped  to  assert,  as  against  plain- 
tiff's claim  for  commissions,  that  one  of  the  owners  was  an 
infant,  so  that  a  binding  contract  for  the  sale  of  all  the  coal 
which  was  contemplated  was  not  obtained;  he  not  having  em- 
ployed plaintiff  with  knowledge  of  the  infancy  of  such  owner, 
though  he  had  not  based  his  refusal  to  carry  out  the  contract 
of  purchase  on  such  infancy.  Mitchell  v.  Weddington  (Ky. 
Ct.  App.  '09),  122  S.  W.  802. 

Sec.  841.    Owners  estopped  to  claim  that  because  they  refused 

to  carry  out  agreement  there  was  no  sale. 
"Where  the  owners  of  real  estate  agreed  to  sell  to  a  purchaser 
procured  by  their  broker,  and  the  purchaser  paid  $10  of  the 
price,  the  owners  were  estopped,  when  sued  for  commissions 
for  making  the  sale  to  assert  that  because  they  subsequently 
refused  to  carry  out  their  agreement  there  was  no  sale.  Gwin- 
nup  v.  Sibert,  106  Mo.  App.  709,  80  S.  W.  589.  See  also  Sec. 
861. 

Sec.  842.  After  acceptance  of  purchaser  owner  can  not  object 
to  pay  broker  on  account  of  purchaser's  inability  to  pay 
for  the  property. 

One  who  employs  a  broker  to  negotiate  a  sale  can  not,  in 
an  action  for  the  commissions,  avail  himself  of  the  objection 
that  the  customer  is  unable  to  pay  for  the  premises,  if  the 
vendor  has  accepted  the  customer  as  satisfactory,  and  has  con- 
veyed the  premises  to  him.  Travis  v.  Graham,  48  N.  Y.  S. 


PLEADINGS,   PRACTICE,   ETC.  719 

736,  23  App.  Div.  214;  Ford  v.  Perkins,  162  111.  App.  176;  Davis 
v.  Paular,  170  111.  App.  317 ;  Wood  &  Tatum  Co.  v.  Busier,  173 
P.  1109,  —  Cal.  App.  — ;  Wolfmon  v.  CallaJian,  204  S.  W.  777, 
—  Tex.  Civ.  App.  — .  Compare  Sees.  694,  726. 

Sec.  843.    Owner  estopped  to  say  contract  too  indefinite. 

An  offer  to  buy  290,000  feet  of  land  to  be  taken  from  a 
parcel  containing  500,000  feet,  said  290,000  feet  to  be  divided 
as  to  front  and  back  lands  from  the  whole  parcel  as  nearly 
equal  as  is  possible,  where  accepted  by  the  owner  of  the  land, 
entitles  the  broker  employed  to  find  a  purchaser  therefor  to 
his  commissions,  and  the  owner  will  not  be  heard  to  say  it  is 
too  indefinite.  Monk  v.  Parker,  180  Mass.  246,  63  N.  E.  793. 

Sec.    844.    Purchaser   who   paid   money   to    vendor's   agent 
estopped  to  deny  the  latter  represented  him. 

A  purchaser  who  paid  money  to  a  real  estate  agent  employed 
by  his  vendor  to  induce  the  agent  to  assist  him  in  the  trans- 
action is  estopped  to  deny  that  the  agent  is  his  agent,  when 
suit  is  subsequently  brought  by  the  vendor  to  reform  the  deed 
which  was  drawn  by  the  agent  for  both  parties,  wherein  a 
reservation  of  growing  crops  was  by  mistake  omitted,  since 
the  mistake  of  the  agent  is  the  mistake  of  both  principals. 
Warrick  v.  Smith,  137  111.  504,  27  N.  E.  709;  Seymour  v. 
Slide,  etc.,  Gold  Mines,  42  Fed.  633.  See  also  Sec.  258. 

Sec.  845.    Receipt  of  $300  estopped  owner  to  say  contract  of 
agency  was  invalid. 

Plaintiff,  vendee,  who  brought  suit  against  agents  to  re- 
cover money  paid  on  an  invalid  contract  of  sale,  can  take 
nothing  by  the  fact  that  the  appointment  of  the  agent  to  sell 
the  land  was  verbal;  the  receipt  of  $300  by  the  owners  would 
estop  them  to  deny  the  agency.  Bogart  v.  Crosby,  80  Cal.  195, 
22  P.  84;  Morris  v.  Terrill,  2  Band.  (Va.),  6. 


720  AMERICAN  LAW  KEAL  ESTATE  AGENCY. 

Sec.  846.    In  a  suit  against  broker  to  account,  vendor  estopped 
to  allege  invalidity  of  sale. 

Where  a  vendor  of  land  instituted  a  suit  against  his  agents, 
real  estate  brokers,  to  recover  a  part  of  the  purchase  money 
in  their  hands  and  retained  by  them  as  commissions,  he  was 
thereby  estopped  to  allege  the  invalidity  of  the  sale  as  against 
said  brokers,  and  therefore  it  was  immaterial  to  inquire  whether 
such  sale  was  or  was  not  valid  under  the  statute  of  frauds. 
Christensen  v.  Wooley,  41  Mo.  App.  53. 

Sec.  847.    Principal  estopped  to  claim  rent  paid  by  tenant  to 
purchaser. 

Where  a  general  agent,  having  power  to  sell  a  piece  of  land, 
limited  only  in  the  method  of  payment,  and  the  agent  having 
control  of  a  building  on  the  land,  upon  a  sale  of  the  land  at 
public  auction,  announces,  in  the  presence  of  a  tenant,  that 
the  purchaser,  after  a  named  date,  shall  be  entitled  to  the 
rents,  and  the  special  agent,  upon  the  payment  for  a  part  of 
the  time  to  the  purchaser,  expresses  approval  of  it,  the  prin- 
cipal is  estopped  from  claiming  rent  paid  to  such  purchaser  by 
such  tenant.  Knox  v.  Barnett,  18  Fla.  594. 

Sec.  848.    Parties  discovering-  double  agency  pending  negotia- 
tions and  not  dissenting  thereto  estopped. 

If  pending  negotiations  the  parties  discover  the  double  agency 
of  the  broker,  and,  without  objecting,  go  on  and,  nevertheless, 
consummate  the  transaction,  they  can  not,  by  reason  thereof,  re- 
fuse to  pay  commissions.  Cassaday  v.  Carrahan,  119  Iowa,  500, 
93  N.  W.  386. 

Sec.  848a.    Party  to  exchange  estopped  by  act  of  agent. 

A  party  to  a  contract  for  an  exchange  of  real  estate  is  estopped 
by  the  act  of  his  agent,  though  such  agent,  without  the  knowledge 
of  the  other  party  to  the  contract,  represented  both  parties  in  the 
transaction.  Neuman  v.  Friedman,  136  S.  W.  251,  156  Mo. 
App.  142. 


PLEADINGS,  PRACTICE,  ETC.  721 

Sec.  849.    Bank  receiving  benefits  estopped  to  deny  authority 
to  sell. 

Where  a  bank  agrees  to  pay  a  real  estate  broker  a  commission 
on  the  sale  of  land  it  can  not  set  up  as  a  defense  that,  under  the 
law  of  the  State  in  which  the  land  is  situate  a  bank  is  prohibited 
from  dealing  in  real  estate,  where  it  has  availed  itself  of  the 
benefits  of  the  sale.  Church  v.  Johnson,  93  Iowa,  544,  61  N.  W. 
916. 

Sec.  849 a.     Defendant  estopped  from  denying  broker's  au- 
thority as  his  agent. 

Where  defendant  did  not  prompt  representation  and  sale  by  a 
broker  to  plaintiff;  held,  that  defendant  was  thereafter  estopped 
from  denying  broker's  authority.  Portsmouth  Oil  Refining  Corp. 
v.  Madrid  Cotton  Oil  Co.,  77  S.  8,  —  Ala.  Sup.  — . 

Sec.  850.    Vendee  knowing  of  fraud  of  agent  can  not  insist 

on  the  validity  of  the  sale. 

Where  one  takes  a  conveyance  from  an  agent  authorized  to 
sell  and  convey  land,  knowing  of  the  fraud  or  breach  of  trust 
of  the  agent,  he  can  not  insist  on  the  validity  of  the  sale. 
Morris  v.  Terrtil,  2  Rand.  (Va.)  6.  See  also  Sec.  845. 

Sec.  851.    Landlord  estopped  to  deny  agent's  authority  to  ac- 
cept waiver  of  privilege  of  renewal. 

Where  a  landlord  accepted  the  waiver  of  the  tenant's  privi- 
lege of  renewal,  procured  by  his  agent  from  the  tenant,  he 
was  estopped  to  deny  the  agent's  authority  in  the  premises. 
No.  121  Madison  Ave.  v.  Osgood,  18  N.  Y.  S.  126. 

Sec.  852.    Broker  not  estopped  by  error  to  plead  incorrectness. 

The  delay  of  a  broker  to  complain  of  an  order  in  regard 
to  his  commissions  on  a  sale  made  by  him  for  the  receiver  of 
an  insolvent  bank,  does  not  estop  him  from  asserting  its  in- 
correctness, in  the  absence  of  prejudice  occasioned  thereby. 
Peters  v.  Anderson,  88  Va,  1051,  14  S.  E.  974.  See  also 
Sec.  840. 


722  AMEKICAN  LAW   EEAL  ESTATE   AGENCY. 

Sec.  853.  Agent  not  estopped  to  claim  commissions  because 
memo,  of  agreement  described  defendant  as  owner  of 
property  to  be  sold. 

An  agent  under  a  contract  to  sell  real  estate  on  commis- 
sion is  not  estopped  from  claiming  his  commissions  because  the 
memorandum  of  the  agreement  describes  defendant  as  the 
owner  of  the  property  to  be  sold.  Condee  v.  Barton,  62  Cal.  1. 

Sec.  854.  Seller  estopped  to  allege  its  representative  had  no 
authority  to  employ  a  broker. 

Where  a  real  estate  broker  makes  a  sale,  the  seller  accept- 
ing the  sale  and  claiming  benefits  thereunder  is  precluded 
from  setting  up,  as  against  the  broker's  claim  for  commissions, 
the  want  of  authority  in  its  representative  to  employ  such 
broker.  Watkins  Land  Mtge.  Co.  v.  Thetford  (Tex.  Civ.  App. 
'06),  96  S.  W.  72. 

Sec.  855.  Principal  not  estopped  to  show  commissions  not  to 
be  paid  for  until  contract  fully  completed. 

In  an  action  for  commissions  for  procuring  purchasers  of 
land,  a  letter  from  the  defendant  to  the  plaintiffs  stating  that 
they  had  not  received  all  the  earnest  money,  part  of  it  remain- 
ing in  escrow  in  the  bank  until  it  should  be  determined  if 
they  were  entitled  to  it,  and  that  they  would  pay  the  balance 
as  soon  as  they  received  that  amount,  did  not  constitute  an 
estoppel  against  a  claim  by  the  defendants  that  they  were  not 
to  pay  commissions  until  the  contract  was  fully  completed. 
Tracey  Land  Co.  v.  Polk  Co.  Ld.  &  Loan  Co.,  131  Iowa,  40, 
107  N.  W.  1029. 

Sec.  856.  Joint  owner  not  repudiating  agent's  fraud,  estopped 
to  deny  connection  therewith. 

A  joint  owner  of  real  estate  who  consents  to  a  listing  there- 
of by  his  co-owner  with  real  estate  agents  for  sale,  receives 
part  of  the  consideration,  and  never  repudiates  the  sale  made 
by  the  agents,  after  discovering  that  they  were  guilty  of  fraud, 
is  estopped  to  deny  connection  with  the  fraud,  but  will  be  held 
liable  only  to  the  extent  of  the  benefit  actually  received.  Alger 
v.  Anderson,  78  Fed.  729.  See  also  Sec.  329. 


PLEADINGS,  PRACTICE,  ETC.  723 

Sec.  857.    Brokers  purchasing  bonds,  pretending  to  act  for 
third  parties,  estopped,  when  found  worthless,  to  recover. 

Plaintiffs,  as  brokers,  entered  into  a  contract  for  the  pur- 
chase of  certain  bonds,  claiming  to  act  for  an  undisclosed  prin- 
cipal, and  stipulating  that  they  should  in  no  manner  be  held 
liable  on  the  contract,  which,  as  they  had  reason  to  believe, 
was  made  by  defendant  under  a  misapprehension  as  to  the 
value  of  the  bonds;  in  fact,  they  were  acting  for  themselves, 
and  there  was  no  other  principal.  Held,  that  they  could  not 
maintain  an  action  on  the  contract,  not  as  agents  for  an  undis- 
closed principal,  because  no  such  principal  existed,  nor  as 
principal,  because  by  their  fraudulent  misrepresentation  they 
had  secured  immunity  from  liability  on  the  contract  as  such, 
and  estopped  themselves  from  claiming  rights  which  were  cor- 
relative with  such  liability.  Paine  v.  Loeb,  96  Fed.  164,  37 
C.  C.  A.  434. 

Sec.   858.    Equitable   owner   estopped  to   deny   agent's  au- 
thority. 

A  contract  of  sale  of  realty  was  made  by  one  having  no  title 
nor  authority  in  writing  to  execute  such  an  instrument;  the 
attorney  for  the  purchaser  was  informed  by  the  equitable  owner 
that  such  person  was  authorized  to  sell,  and  was  directed  to  see 
him  in  reference  to  the  matter.  Held,  under  code  of  civil 
procedure,  that  such  statement  was  a  ratification  of  the  agent's 
authority  which  estopped  the  equitable  owner  from  denying  it. 
Gregg  v.  Carey,  4  Cal.  App.  354,  88  P.  282. 

Sec.  859.    Broker's  silence  ineffective  to  estop  from  recovering 
commissions. 

Where  defendant,  a  real  estate  broker,  contracted  to  pay 
plaintiff,  another  broker,  one  dollar  per  acre  if  he  would  fur- 
nish a  purchaser  for  a  certain  farm  at  $37.50  per  acre,  includ- 
ing the  crops,  and  defendant,  with  full  knowledge  of  plaintiff 's 
rights  thereunder,  voluntarily  sold  the  farm  for  $35  per  acre, 
without  the  crops,  to  a  purchaser  furnished  by  plaintiff,  the 
latter  was  not  estopped  by  his  silence,  after  introducing  such 
purchaser  and  defendant  had  informed  him  of  the  rise  in  the 
price,  to  claim  full  commissions  on  the  subsequent  consumma- 


AMEBICAN  LAW  EEAL   ESTATE  AGENCY. 


tion  of  the  sale.    Provident  Tr.  Co.  v.  Darraugh,  168  Ind.  29, 
78  N.  E.  1030.    See  also  Sec.  115. 

Sec.  860.    Broker  turning  property  over  to  another  to  sell, 

estopped  to  claim  commissions  on  sale  by  latter. 
An  agent  for  the  sale  of  lands  who  turns 'the  property  over 
to  another  to  sell,  with  consent  of  the  owner,  and  thereafter 
does  nothing  to  effect  a  sale,  loses  his  right  to  a  commission, 
not  on  the  ground  of  assignment,  but  because  of  a  waiver  of 
his  right  to  make  a  sale;  and  he  is  estopped  to  assert  any  in- 
terest in  the  commissions  resulting  from  the  sale  made  by  the 
other.  Munson  v.  Mdbon,  135  Iowa,  335,  112  N.  W.  775. 

Sec.  860a.  Broker  estopped  to  claim  for  benefit  to  party  he 
did  not  represent. 

Where  brokers  who  consummated  exchange  of  properties  did 
not  assume  to  represent  one  owner,  but  acted  as  agents  for  other 
party,  brokers  for  first  party  could  not  say  their  acts  as  agents 
for  other  party  enured  to  his  benefit  as  agents  for  first  party. 
Whittle  v.  Klipper,  165  N.  W.  425,  —  Iowa  Sup.  — . 

Agent  employed  to  sell  land  could  not  say  act  of  another 
agent  enured  to  his  benefit  as  agent  of  owner,  where  owner  had 
already  seen  purchaser  and  had  begun  negotiations  before  other 
agent  knew  of  the  deal.  Id. 

Sec.  860b.  Where  broker  waived  one  commission  in  hope  of 
future  favor,  on  second  failing,  can  not  sue  for  breach 
and  rely  on  defendant's  estoppel  to  deny  the  released 
first  commission  as  damages. 

Where  a  broker  foregoes  a  commission  on  a  sale  of  land,  as 
consideration  for  placing  other  lands  in  his  hands  for  sale  at  a 
net  price,  he  can  not  sue  for  breach  of  the  second  contract  and 
rely  on  such  released  commission  as  damages,  on  the  ground  that 
the  owner  was  estopped  to  deny  that  he  was  damaged  to  that  ex- 
tent. Shapiro  v.  Benenson,  167  N.  Y.  Sup.  1004,  181  App. 
Div.  19. 

Where  broker  foregoes  a  fixed  commission  on  a  sale  of  land  as 
consideration  for  an  agreement  whereby  he  is  given  the  sale  of 
other  land,  on  refusal  of  the  principal  to  perform  the  second  con- 


PLEADINGS,  PRACTICE,  ETC.  725 

tract,  the  agent  could  either  disaffirm  the  second  contract  and  be 
restored  to  the  consideration  parted  with,  or  recover  damages  for 
breach  of  the  second  contract.  Id. 

Where  a  broker  advanced  money  on  a  contract  to  sell  land  and 
the  owner  defaults,  he  can,  on  rescinding,  recover  the  advance  as 
for  money  had  and  received,  but  where,  as  consideration  for  the 
contract,  the  agent  had  foregone  a  commission  due  him  on  an- 
other deal,  the  action  would  be  for  the  consideration  parted  with. 
Id. 

Sec.  861.  Owner  concluding  sale  with  purchaser  furnished  by 
broker  estopped  to  claim  it  was  done  independently. 

Where  defendants  gave  plaintiff  an  option  to  effect  a  sale  of 
coal  properties,  if  sold  within  a  certain  time,  on  a  stipulated  com- 
mission, and  agreed  to  assist  plaintiff  in  the  sale  thereof,  defend- 
ants will  not  he  heard  to  say  that  a  sale  to  one  with  whom  plain- 
tiff was  negotiating,  made  during  the  continuance  of  the  option, 
was  the  result  of  their  independent  efforts.  Wells  v.  Rocking 
Valley  Coal  Co.,  137  Iowa,  526,  114  ST.  W.  1076.  See  also  Sec. 
841. 

Sec.  861a.  Since  oral  promise  to  pay  commission  is  not  bind- 
ing1, oral  promise  to  make  contract  can  not  operate  as 
estoppel  to  deny  right  to  commission. 

Since  an  oral  promise  to  pay  a  commission  for  the  sale  of  land 
is  not  binding,  an  oral  promise  to  make  a  contract  can  not  op- 
erate as  an  estoppel  to  deny  broker's  right  to  a  commission,  since 
tHe  broker  had  no  right  to  rely  on  it.  Edwards  v.  Laird,  134  P. 
365,  22  Cal.  App.  398;  Connor  v.  Higgins,  132  P.  849,  21  Cal. 
£pp.  756. 

Sec.  862.  When  action  tried  on  theory  of  written  contract, 
estopped  on  appeal  to  claim  it  was  verbal. 

Where  an  action  was  tried  by  both  parties  on  the  theory  that 
the  contract  sued  on  was  a  written  one,  and  defendant  requested 
several  instructions  which  so  stated,  he  could  not,  on  appeal,  be 


726  AMERICAN   LAW   EEAL   ESTATE   AGENCY. 

heard  to   contend  that   the  contract  was  verbal.      McDermott  v. 
Mahoney  (Iowa  Sup.  '06),  106  N.  W.  925.     Compare  Sec.  840. 

Sec.  862a.  That  broker  and  purchaser  conspired  to  defraud 
vendor  did  not  estop  the  purchaser  to  sue  for  misrepre- 
sentation as  to  the  acreage  purchased. 

That  vendor's  broker,  the  purchaser  and  another  conspired 
to  defraud  vendor  by  retaining  a  part  of  the  price,  did  not 
estop  the  purchaser  to  sue  the  vendor  for  the  broker's  misrep- 
resentation as  to  acreage.  Farris  v.  Gilder  (Tex.  Civ.  App. 
'09),  115  S.  W.  645.  Compare  Sec.  862b. 

Sec.  862b.  Conspiracy  of  parties  to  sale  to  deprive  broker  of 
commissions. 

It  is  immaterial  to  a  real  estate  agent's  rights  to  a  commission 
on  a  sale  procured  by  him  that  he  did  not  obtain  an  offer  for  his 
principal  on  terms  as  good  as  those  on  which  the  sale  was  made, 
where  the  parties  to  the  sale  conspired  to  deprive  him  of  his 
commissions.  Lipscomb  v.  Mastin  (Mo.  App.  '10),  125  S.  W. 
1177;  Gibbon  v.  Jurgenson,  190  111.  App.  55.  Compare  Sec.  862a. 

Sec.  862c.    Cases  applying  doctrine  of  estoppel. 

(1)  Where  pending  negotiations  by  brokers  with  a  prospective 
customer,  the  owners  took  the  negotiations  into  their  own  hands, 
and  were  able  only  to  procure  an  option  contract,  they  were  es- 
topped to  deny  liability  for  commissions,  on  the  ground  that  the 
customer  produced  by  the  brokers  was  willing  only  to  enter  into 
an  option  contract.     Duncan  v.  Parker,  142  P.  657,  81  Wash. 
340,  L.  E.  A.  1915  A,  804. 

(2)  Where   defendant   employed  plaintiff  to   sell   certain  real 
property  on  a  commission  of  !1/4%  on  the  selling  price,  when  the 
title  is  passed,  and  the  title  never  passed  to  the  purchaser  pro- 
cured by  plaintiff  because  it  was  defective,  the  phrase,  "when  the 
title  is  passed,"  was  not  to  be  construed  as  a  condition  to  plain- 
tiff's right  to  commission,  but  rather  as  fixing  the  time  when  the 
contract  should  be  performed,  and  on  the  failure  of  the  title  to 
pass  for  that  reason,  defendant  was  estopped  to  claim  that  plaintiff 


PLEADINGS,  PRACTICE,  ETC.  727 

had  failed  to  earn  his  commission.    MecTces  v.  Mullen,  132  N.  Y. 
Sup.  942,  75  Misc.  Rep.  303. 

(3)  Where  defendant  employed  plaintiff  brokers  to  secure  a 
loan,  and  later  plaintiffs'  employee,  in  an  indefinite  conversation 
with  another  loan  broker,  by  a  mutual  mistake  as  to  the  loan  in- 
volved, stated  that  it  would  not  be  made,  plaintiff  was  not  es- 
topped to  deny  release  of  defendant  from  its  obligation  and  con- 
tract for  commissions.  Colvin  Phillips  &  Co.  v.  Newoc  Co.,  172 
P.  355,  —  Wash.  Sup.  — . 


CHAPTER  XIV. 

SECTION.  SECTION. 

863.  Dismissal,  when  proper.  866.     Prime  facie  ease. 

864.  Dismissal,  when  error.  867-873a.    Issues. 

865.  Non-suit.  874-887g.    Variances. 

Sec.  863.    Dismissal  of  action,  when  proper. 

A  motion  to  direct  a  verdict  for  defendant  without  special 
ground,  should  be  granted  where  the  plaintiff's  evidence 
wholly  fails  to  show  such  performance  on  his  part  as  is  neces- 
sary to  entitle  him  to  recover.  Gerding  v.  Haskins,  141  N.  Y. 
514,  36  N.  E.  601.  Where  an  action  is  brought  to  recover  com- 
missions on  a  loan  which  a  certain  person  is  alleged  to  have 
negotiated  for  defendants,  in  the  absence  of  proof  that  such 
person  was  authorized  to  act  as  defendant's  agent  in  the  trans- 
action, the  action  will  be  dismissed,  without  being  submitted  to 
the  jury.  McLaughlin  v.  Ranger,  66  N.  Y.  S.  450,  32  Misc.  732. 

Where,  in  an  action  for  a  commission,  the  evidence  did  not 
show  performance  on  plaintiff's  part  before  defendant's  termina- 
tion of  the  transaction,  defendant's  motion  to  dismiss  on  that 
ground  should  have  been  granted.  Von  Bayer  v.  Ninigret  Mills 
Co.,  150  N.  Y.  Sup.  291,  164  App.  Div.  698. 

Dismissal  of  action  by  owner's  agent  against  drawer  of  a  check 
given  to  such  agent  for  purchase  price  thereof,  less  an  incum- 
brance,  where  deed  of  conveyance  was  changed  in  a  material  mat- 
ter by  such  agent,  without  knowledge  of  the  owner  or  proposed 
purchaser,  and  where  sale,  for  that  reason,  was  not  consummated, 
was  not  error.  Dorwart  v.  Hockett,  173  N.  W.  596,  —  Neb. 
Sup.  — . 

Sec.  864.    Dismissal  of  action,  when  error.    , 

Evidence  in  an  action  to  recover  commissions  for  the  sale  of 
real  estate  was  held  to  show  that  the  owner  had  reasonable  cause 
728 


PLEADINGS,  PRACTICE,  ETC.  729. 

to  believe  that  the  party  to  whom  he  sold  the  property  was  sent 
to  him  by  the  agent,  so  as  to  render  it  error  to  dismiss  the  case. 
Henninger  v.  Burch,  90  Minn.  43,  95  N.  W.  578. 

Sec.  865.    Non-suit. 

In  the  absence  of  any  evidence  to  show  that  the  sale  by  de- 
fendant to  his  brother  and  the  subsequent  conveyance  by  him  to 
B.,  was  done  to  defraud  plaintiff  of  his  commissions,  he  could 
not  recover  them  from  defendant.  Bennett  v.  Kidder,  5  Daly 
(N.  Y.),  512;  Ham  v.  Weber,  43  N.  Y.  S.  1059,  19  Misc.  485. 
See  also  Sec.  425a. 

On  plaintiff's  evidence  upon  an  action  on  an  I.  0.  TL,  signed 
by  defendant,  and  followed  by  the  descriptive  word,  "cashier," 
for  payment  of  a  certain  sum  on  completion  of  a  sale;  held,  that 
it  was  error  to  direct  a  nonsuit.  Hay  v.  McDonald,  131  P.  74,  21 
Cal.  App.  204. 

In  action  by  selling  agent  for  commission  on  sale  made  directly 
by  vendor,  evidence  to  show  agreement  between  vendor  and  vendee 
to  pay  commission  to  selling  agent,  not  of  itself  sufficient,  or  with 
other  evidence,  to  show  such  contract;  held,  properly  rejected  and 
nonsuit  ordered.  Jordiana  &  Phillips  v.  Dixie  Culvert  &  Metal 
Co.,  95  S.  E.  679,  —  Ga.  Sup.  — . 

Sec.  866.    Prima  facie  case. 

Testimony  that  a  deed  was  tendered  to  the  principal,  "in  pur- 
suance of  an  agreement  between"  the  parties,  is  sufficient  prima 
facie,  to  sustain  a  finding  that  it  was  delivered  within  thirty 
days.  Beebe  v.  Roberts,  3  E.  D.  Smith  (N.  Y.)  194.  A  con- 
tract of  sale  signed  by  the  purchaser,  unilateral  when  tendered 
to  the  vendor,  is  prima  facie  evidence  of  the  purchaser's  readi- 
ness and  willingness  to  buy.  Flynn  v.  Jordal,  124  Iowa  457, 
100  N.  W.  325.  Evidence  by  plaintiff  that  he  did  business  as  a 
real  estate  agent,  though  he  assisted  in  the  foundry  business, 
and  that  the  usual  commissions  allowed  such  agents  for  selling 
property  of  the  character  in  suit  was  five  per  cent.,  was  compe- 
tent as  prima  facie  evidence  of  value.  Askby  v.  Holmes,  68 
Mo.  App.  23.  Proof  that  a  party  has  executed  a  formal  con- 
tract to  convey  certain  property  in  exchange  for  other,  is  sufifi- 


730  AMERICAN   LAW   EEAL   ESTATE   AGENCY. 

cient  prima  facie  evidence  of  his  title  thereto,  in  an  action  by  a 
broker  for  commissions  in  effecting  an  exchange.  Muscovitz  v. 
Hornberger,  46  N.  Y.  S.  462,  20  Misc.  558. 

Termination  of  a  revocable  agreement  to  sell  land  by  a  sale 
made  by  the  principal  before  performance  by  the  agent  is  an  af- 
firmative defense  which  need  not  be  negatived  by  the  agent,  in  his 
action  for  breach  of  contract,  in  order  to  make  out  a  prima  facie 
case.  Goldman  v.  Weisman,  143  N.  W.  983,  123  Minn.  370. 

A  broker  can  not  recover  a  commission  for  procuring  a  sale 
of  bonds  unless  he  makes  out  a  prima  facie  showing  of  compli- 
ance with  the  conditions  of  his  contract  with  the  owner.  Butter- 
field  v.  Consolidated  Fuel  Co.,  132  P.  559,  42  Utah,  490. 

In  an  action  to  recover  a  broker's  commission,  where  defendant 
agreed  to  pay  plaintiff  a  certain  commission  upon  consummation 
of  a  deal,  a  prima  facie  case  held  to  be  made  out  when  plaintiff 
showed  a  contract  for  the  sale  of  the  land,  formally  executed  by 
the  parties  and  accepted  by  the  defendant,  notwithstanding  de- 
fendant later  refused  to  carry  out  the  contract.  Dougherty  v. 
Beckleriberg,  205  111.  App.  491. 

Sec.  867.    Issue  as  to  which  of  several  brokers  effected  a  sale. 

On  the  issue  of  which  of  several  rival  brokers  effected  a  sale 
so  as  to  entitle  him  to  commissions,  it  is  proper  to  show  by  the 
purchaser  his  state  of  mind  regarding  the  purchase  after  he  had 
left  the  broker  claiming  the  commission.  McGuire  v.  Carlson,  61 
111.  App.  696. 

Sec.  867a.    Issue  of  good  faith  of  defendant  in  abandoning 
negotiations. 

In  an  action  by  real  estate  brokers  to  recover  commission,  where 
it  appeared  that  after  considerable  negotiations  with  plaintiffs' 
customer,  both  such  customer  and  defendant  informed  plaintiffs 
that  they  would  not  negotiate  further  with  reference  to  the  trans- 
action, but  yet  defendant  later  sold  the  property  to  another  per- 
son, who  in  turn  conveyed  it  to  plaintiffs  customer,  the  control- 
ling issue  of  fact  was  that  of  defendant's  good  faith  in  abandon- 
ing the  negotiations.  Stone  v.  Kreis,  202  111.  App.  43. 


PLEADINGS,  PEACTICE,  ETC.  731 

Sec.  868.    Issue  as  to  whether  defendant  agreed  to  pay  plain- 
tiff twenty-five  cents  per  acre  and  five  per  cent,  on  balance. 

In  an  action  for  a  balance  claimed  to  be  due  for  selling  a  large 
tract  of  land  for  defendant,  where  the  issue  is  whether  defendant 
agreed  to  pay  plaintiff  the  sum  of  twenty-five  cents  per  acre  and 
a  commission  of  five  per  cent,  on  the  balance,  the  testimony  of  a 
real  estate  agent  is  competent  to  show  that  the  compensation 
claimed  by  plaintiff  is  reasonable  and  not  unusual.  Greer  v. 
Laws,  56  Ark.  37,  18  S.  W.  1038. 

Sec.  869.    Issue  as  to  indebtedness  existing  at  beginning  of 
action  for  undisclosed  services. 

In  an  action  for  a  broker's  commissions,  the  only  allegation 
in  plaintiff's  complaint,  showing  the  liability  of  defendant,  was 
that  within  two  years  prior  thereto  the  defendant  became  in- 
debted to  plaintiff's  assignor  in  a  certain  sum  for  services  ren- 
dered by  him  to  the  defendant  at  his  special  instance  and 
request.  Held,  that  the  only  issue  tendered  by  the  plaintiff 
was  the  indebtedness  existing  at  the  time  the  action  was  com- 
menced for  certain  undisclosed  services,  and  on  that  issue  it 
was  competent  for  defendant  to  offer,  and  for  the  court  to 
consider,  any  evidence  which  would  tend  to  show  that,  even 
though  the  services  were  rendered,  they  did  not  create  an  in- 
debtedness against  the  defendant,  and  defendant's  failure  to 
set  up  in  answer,  as  a  defense,  that  the  assignor  had  received  a 
commission  from  the  purchaser,  did  not  preclude  him  from 
offering  evidence  thereof,  or  the  court  from  considering  its  ef- 
fect. Earner's  Law  &  Coll.  Co.  v.  Bradbury,  3  Cal.  App.  256, 
84  P.  1007.  Compare  Sec.  678. 

Sec.  870.    Issue  in  action  for  commissions  for  sale  of  real  estate 
to  stock  company. 

In  an  action  for  commissions  for  effecting  a  sale  of  land,  the 
petition  alleged  that  the  land  was  placed  in  plaintiffs'  hands 
by  a  written  contract  of  sale  at  the  price  of  $50,000,  and  that 
they  were  to  receive  ten  per  cent,  commission  on  the  amount 
realized  by  the  defendant,  to  be  paid  when  the  purchase  price 
was  received,  whether  the  land  was  sold  directly  or  through 


AMERICAN  LAW  ft"EAL  ESTATE  AGENCY. 

the  organization  of  a  stock  company  and  the  money  value  of 
the  lands  realized  by  a  sale  of  the  stock;  that  a  mining  com- 
pany was  organized  to  which  defendant  conveyed  the  land,  re- 
ceiving practically  all  of  the  stock  of  the  company,  the  par 
value  of  which  was  $150,000,  that  defendant  had  received 
$100,000  from  the  sale  of  the  stock,  on  which  amount  plain- 
tiffs were  entitled  to  commissions.  Held,  that  plaintiffs  were 
not  entitled  to  show  that  after  selling  300  shares  of  stock  at 
33  1/3  cents  on  the  dollar,  and  having  a  purchaser  ready  to 
buy  all  the  stock  at  that  figure,  defendant  raised  the  price  to 
forty  cents,  the  action  not  being  for  damages  for  breach  of 
contract,  but  proceeding  on  the  theory  of  an  actual  sale.  Cos- 
grove  v.  Leonard  Her.  &  Realty  Co.,  175  Mo.  100,  74  S.  W.  986. 

Sec.  871.    Issue  as  to  procuring  cause  of  sale,  what  not  con- 
trolling. 

The  fact  that  plaintiff  did  not  inform  defendant  that  the 
purchaser  was  his  customer  before  the  sale,  was  not  controlling 
on  the  issue  as  to  whether  plaintiff  was  the  procuring  cause 
of  the  sale  to  him.  Metcalfe  v.  Gordon,  83  N.  Y.  S.  808,  86 
App.  Div.  368.  Compare  Sec.  360, 

Sec.  871a.    To  avoid  a  contract  issue  must  be  presented  by  the 

pleadings. 

A  land  contract  entered  into  by  the  purchaser's  agent  can 
not  be  avoided  by  the  purchaser,  in  a  suit  to  enforce  the  pur- 
chase money  notes,  because  the  agent  also  represented  the 
vendor,  where  that  fact  was  not  presented  in  the  pleadings. 
Anderson  v.  Creston  Land  Co.,  96  Va.  257,  31  S.  E.  82. 

Sec.  872.    Issue  presented  by  amendment  to  answer  false  and 

misleading. 

On  the  trial  of  a  cause  the  defendant  obtained  leave  to  amend 
his  answer  by  alleging  "that  after  making  the  sales  named 
they  (plaintiffs)  complained  that  the  prices  were  too  high,  as 
named  by  defendant,  and  made  no  effort  to  sell  the  same,  but 
neglected  the  same  to  the  defendant's  damage  and  injury. "  Held, 


PLEADINGS,  PRACTICE,  ETC.  733 

tHat  tHe  matter  involved  in  the  amendment,  not  being  perti- 
nent to  the  case,  was  calculated  to  raise  a  false  issue  and  dis- 
tract the  attention  of  the  jury  from  the  real  questions  for  their 
determination.  Marshall  v.  Gobel,  32  Neb.  9,  48  N.  W.  898. 

Sec.  873.    Issue  whether  authority  to  make  a  sale  was  subject 
to  wife's  approval. 

In  an  action  by  a  broker  for  commissions  for  making  a  sale 
of  realty,  where  the  defense  set  up  in  the  answer  was,  that  the 
broker  was  employed  to  sell  the  property  upon  the  express 
understanding  that  any  sale  of  the  property  would  be  subject 
to  the  approval  of  the  owner's  wife,  and  that  the  wife  did  not 
consent  to  the  sale  made  by  the  broker,  but  disapproved  of  it, 
and  refused  to  sign  the  deed,  the  issue  to  be  determined  was 
not,  whether  the  sale  made  by  the  broker  was  subject  to  the 
wife's  approval,  but  rather,  whether  or  not  authority  to  make  a 
sale  was  conditioned  upon  the  wife's  approval.  Baker  &  Go.  V, 
DeVitt  (Tex.  Civ.  App.  '08),  110  S.  W.  528. 

Sec.  873a.    Evidence  held  not  to  raise  issue  of  revocation  of 
authority  to  sell. 

In  an  action  by  a  broker  for  commission  earned  by  producing 
a  purchaser  to  whom  defendant  refused  to  convey,  evidence  held 
not  to  raise  the  issue  of  revocation  of  authority  to  sell.  Mauser 
v.  Hurdle,  140  P.  479,  27  Colo.  App.  567. 

Sec.  874.    Variance,  broker  can  not  declare  as  for  perform- 
ance and  recover  damages  for  breach. 

Under  a  written  agreement  of  a  land  owner  to  pay  a  broker  a 
certain  sum  if  he  should  send  or  cause  to  be  sent  to  the  land 
owner  a  person  with  whom  the  latter  "may  see  fit  and  proper  to 
effect  a  sale  or  exchange  of  the  land,"  the  broker  can  not  re- 
cover the  sum  stipulated  without  proof  of  the  sale  or  exchange 
of  the  land,  nor  on  a  quantum  meruit  for  services  in  negotia- 
tions for  such  sale  or  exchange,  without  proof  that  such  nego- 
tiations were  rendered  fruitless  by  the  fault  of  the  land  owner. 


734;  AMEBICAN  LAW  EEAL  ESTATE  AGENCY. 

Walker  v.  Tirrell,  101  Mass.  257;  Drury  v.  Newman,  99  Mass. 
256 ;  Robinson  v.  Olcl.  Fire  Ins.  Co.,  155  P.  202,  —  Okl.  Sup.  — . 

Sec.  875.    On  claim  for  selling  property,  broker  can  not  re- 
cover as  a  middleman. 

A  complaint  which  alleged  that  complainants  were  real  estate 
brokers  and  that  defendant,  well  knowing  the  fact,  gave  them 
an  option  on  his  property  and  agreed  to  pay  a  commission  for 
their  services  in  case  of  a  sale,  and  that  they  procured  a  pur- 
chaser, and  in  pursuance  of  negotiations  initiated  by  them  a 
sale  was  effected,  stated  a  cause  of  action  on  the  theory  that  the 
plaintiffs  were  brokers,  and  hence  they  could  not  recover  on 
proof  that  they  were  mere  middlemen.  Southack  v.  Lane,  65 
N.  Y.  S.  629,  32  M.  141 ;  Walker  v.  Osgood,  98  Mass.  348. 

Sec.  876.    In  order  to  take  advantage  of  variance  defendant 

must  make  timely  objection. 

In  order  to  take  advantage  of  a  variance  between  the  allega- 
tions of  a  petition  and  the  proof,  defendant  must  make  objec- 
tion in  the  trial  court  to  the  introduction  of  evidence  on  that 
ground  and  show  by  affidavit,  in  what  respect  he  has  been 
misled  thereby.  Fisher,  etc.,  R.  E.  Co.  v.  Staed  R.  Co.,  159  Mo. 
562,  62  S.  W.  443;  Gregg  v.  Loomis,  22  Neb.  174,  34  N.  W.  355; 
Thompson  v.  Sargent,  134  P.  7,  66  Or.  354. 

Sec.  877.    Allegation  to  pay  5  per  cent,  on  any  amount,  not 
sustained  by  evidence  if  sold  for  $5,000. 

An  allegation  that  defendant  agreed  to  pay  5  per  cent,  on 
the  amount  for  which  he  should  sell  the  mill  of  defendant, 
whatever  it  might  amount  to,  is  not  sustained  by  evidence  that 
defendant  agreed  to  pay  plaintiff  5  per  cent,  if  he  would  sell 
the  mill  for  $5,000;  and  this  forms  a  fatal  variance  between 
the  contract  declared  on  and  that  proved.  Menifee  v.  Higgins, 
57  111.  50. 

Sec.  878.    Allegation  that  rights  sold  comprised  50,000  acres 
not  sustained  by  proof  of  35,000. 

Counts  in  a  complaint  alleged  that  plaintiff  acted  for  a  third 
person  in  a  sale  to  defendant  of  turpentine  rights  belonging 


PLEADINGS,  PRACTICE,  ETC.  735 

to  S  third  person;  tHat  the  rights  sold  extended  to  the  trees 
comprised  in  50,000  acres,  that  the  consideration  promised  to 
defendant  was  a  net  price  per  acre,  to  be  paid  to  the  third  per- 
son, and  commissions  to  be  paid  to  plaintiff;  the  evidence 
showed  that  what  was  actually  sold  was  the  third  person's  tur- 
pentine rights  then  owned  within  a  described  territory  said  to 
contain  50,000  acres,  less  3,000  acres  reserved,  together  with 
such  turpentine  rights  within  that  territory  as  might  be  ac- 
quired by  the  third  person  within  a  fixed  period;  the  rights 
so  owned  and  sold,  including  subsequent  acquisitions  did  not 
extend  to  land  exceeding  35,000  acres.  Held,  a  fatal  variance 
between  the  allegations  and  the  proof.  Moses  v.  Beverly,  137 
Ala.  473,  34  S.  825. 

Sec.  879.    No  variance  between  allegation  for  fee  on  cost  of 
houses,  and  proof  including  the  grounds. 

In  an  action  by  a  real  estate  broker  for  commissions  the 
declaration  alleged  that  plaintiff  rendered  services  in  procur- 
ing for  defendants  a  contract  for  the  erection  of  a  number  of 
houses,  and  that  defendants  agreed  to  pay  him  a  commission 
of  one  per  cent,  of  "the  amount  of  the  contract  price  for  the 
erection  of  said  houses."  Plaintiff  claimed  commissions  on  the 
sum,  which  the  evidence  showed  included  both  the  cost  of  the 
houses  and  of  the  lands  on  which  they  were  erected,  this  entire 
sum  being  secured  by  mortgage  to  defendants  from  the  other 
party  to  the  contract;  the  contract  for  commissions  was  oral, 
and  plaintiff  testified  that  both  parties  understood  that  the  com- 
mission was  to  be  calculated  on  the  total  amount  of  the  mort- 
gages. Held,  that  there  was  no  material  variance  between  the 
pleadings  and  the  proof.  Richards  v.  Richman,  5  Pennewill 
(Del.)  558,  64  A.  238;  Smith  v.  Sharp  (Ala.  Sup.  '09),  50 
S.  381. 

Sec.  879a.    Slight  excess  in  acreage  not  a  material  variance. 

Findings  of  fact  in  an  action  for  commissions  for  the  sale 
of  land,  that  the  purchasers  to  whom  the  agent  sold  took  320 
acres,  did  not  limit  the  amount  of  land  sold  to  320  acres  so 
as  to  defeat  the  action,  the  authority  being  to  sell  327  acres, 
where,  in  answer  to  another  question,  if  there  was  an  excess 


AMEKICAN  LAW   RKAT.   ESTATE   AGENCY. 

over  320  acres,  to  state  how  many  acres  of  such  excess  each 
of  the  purchasers  agreed  to  take,  the  jury  found  that  one  pur- 
chaser agreed  to  take  3Vz  acres,  and  another  3Va  acres.  Howell 
v.  Denton  (Tex.  Civ.  App.  '08),  113  S.  W.  314. 

Sec.  879b.    Immaterial  variance  between  description  of  land 
conveyed  and  in  broker's  authority. 

In  a  broker's  action  for  commissions  for  an  exchange  of  prop- 
erty conveyed  after  defendant  had  examined  the  property  and 
accepted  abstracts  and  a  deed  thereof;  held,  that  a  variance  be- 
tween the  description  of  the  land  conveyed  and  that  in  defend- 
ant's letter  of  authority  was  immaterial,  and  that  the  broker  was 
entitled  to  his  commission.  Price  v.  Partridge,  139  P.  34,  78 
Wash.  362. 

Sec.  880.    Agreement  for  sale  and  proof  of  an  exchange,  not 
a  fatal  variance. 

Where  a  declaration  alleges  an  agreement  on  a  "sale"  of  real 
estate,  proof  of  an  exchange  of  the  property  is  not  a  fatal  vari- 
ance, if  defendant  is  not  misled.  Whitaker  v.  Engle,  111  Mich. 
205,  69  N.  W.  493;  Park  v.  Towne  (S.  D.  Sup.  '08),  116  N.  W. 
1123;  Clark  v.  Allen,  125  Cal.  276,  57  P.  985. 

In  an  action  by  a  broker  to  recover  a  commission  for  a  sale 
of  the  defendant's  real  estate;  held,  that  there  was  no  variance 
between  the  evidence  offered  and  the  statement  of  claim.  Hobbs 
v.  Junge,  202  111.  App.  191. 

Sec.   880a.     No  material  variance  between  allegations  and 
proof. 

There  is  no  material  variance  between  the  petition,  in  an  ac- 
tion by  a  broker  for  commissions,  which  alleges  his  employment 
to  procure  a  purchaser  for  a  specified  commission,  the  procurement 
of  a  purchaser,  and  the  subsequent  sale  of  the  land  to  him,  and 
the  evidence,  which  shows  that  the  owner  and  the  purchaser  pro- 
cured by  the  broker  entered  into  an  enforceable  contract  for  the 
sale  and  purchase  of  the  land,  and  that  the  owner  failed  to  per- 
form, though  the  purchaser  was  ready  and  willing;  the  word 
"sale"  not  being  limited  to  a  transaction  where  the  legal  title  is 


PLEADINGS,  PEACTICE,  ETC.  737 

conveyed  to  the  purchaser.  Sanderson  v.  Wellsford  (Tex.  Civ. 
App.  '09),  116  S.  W.  382;  Farrington  v.  McClelland,  146  P. 
1051,  26  Cal.  App.  375;  Moore  v.  King,  178  S.  W.  124,  —  Mo. 
-;  Johnson  v.  Stewart  &  Hay  Bldg.  Co.,  153  S.  W.  511,  171  Mo. 
App.  543;  Ely  v.  Wilde,  122  P.  1122,  62  Or.  Ill;  Heiser  v.  Rey- 
nolds, 106  A.  888,  —  Pa.  Sup.  — . 

Where  a  plaintiff  stated  a  cause  of  action  as  a  real  estate  bro- 
ker, and  the  evidence  showed  plaintiff  to  have  acted  merely  as 
middleman,  the  variance  was  not  fatal,  though  the  trial  judge 
failed  to  order  the  complaint  to  be  amended  to  conform  to  the 
proof.  Clopton  v.  Meeves,  133  P.  907,  24  Idaho,  293. 

Sec.  881.    No  variance  where  plaintiff  was  to  be  paid  $60  for 
services  and  proof  of  2  per  cent,  on  $3,000. 

There  is  no  variance  between  the  pleadings  and  proof,  where 
the  petition  avers  that  plaintiff  was  to  receive  $60  for  his 
services,  if  he  assisted  in  selling  certain  realty,  and  the  proof 
of  plaintiff  shows  that  he  was  to  receive  two  per  cent,  on  the 
amount  for  which  the  property  should  be  sold  or  exchanged, 
and  that  it  was  sold  for  $3,000.  Rembolz  v.  Bennett,  86  Mo. 
App.  174. 

Sec.  882.    Claim  for  given  sum  and  proof  of  smaller  no  va- 
riance where  defendant  was  not  misled. 

Where  plaintiff  claims  he  is  entitled  to  a  given  sum  under  a 
contract,  he  is  entitled  to  recover,  though  the  proof  shows  that 
he  was  entitled  to  a  smaller  sum,  unless  the  variance  has  mis- 
led defendant.  Nichols  v.  Wkltaere,  112  Mo.  App.  692,  87  S. 
W.  594. 

Sec.  882a.     No  variance  between  allegations  and  proof  of 
commission  to  be  paid  to  broker. 

There  was  no  variance  between  an  allegation  that  it  was  under- 
stood that  plaintiff  should  receive  the  usual  and  customary  com- 
mission paid  real  estate  agents,  and  proof  of  a  parol  agreement, 
without  any  stipulations  as  to  the  amount  of  the  compensation, 
as  it  will  be  implied  by  law  that  plaintiff  was  to  receive  the  cus- 
tomary or  reasonable  commission.  Lowenstein  v.  Holmes,  135 
iP.  727,  40  Okl.  33. 


738  AMERICAN  LAW  HTML  ESTATE  AGENCY. 

Sec.  882b.   Variance  as  to  amount  one  party  to  proposed  trade 
was  to  pay  to  the  other. 

There  is  a  variance  where  proof  and  allegations  in  petition  in 
broker's  action  for  commission  differ  as  to  the  amount  one  party 
to  proposed  trade  was  to  pay  to  the  other.  Britton  v.  Eagan,  196 
S.  W.  972,  —  Tex.  Civ.  App.  — . 

Sec.  883.    On  allegation  of  special  contract,  can  not  recover 
on  implied  agency. 

Under  an  allegation  of  a  special  contract  of  employment  to 
sell  property,  recovery  can  not  be  had  upon  an  agency  implied 
from  an  acceptance  of  the  agent's  services.  Bassford  v.  West,  124 
Mo.  App.  248,  101  S.  W.  610;  Smith  v.  Robinson,  214  S.  W.  771, 
—  Ky.  Ct.  App.  — . 

Sec.  883a.    Where  express  contract  alleged,  can  not  recover 
on  implied  one. 

Even  if  the  notes  were  sufficient  to  show  an  implied  contract 
for  commissions  on  a  sale  of  defendant's  farm,  there  could  be  no 
recovery  where  only  an  express  contract  was  declared  on.  Smith 
v.  Robinson,  214  S.  W.  771,  —  Ky.  Ct.  App.  — . 

Sec.  884.    Contract  made  in  April,  not  sustained  by  proof  of 

similar  made  in  August. 

Where  the  petition  in  an  action  by  a  broker  for  commis- 
sions sets  forth  a  cause  of  action  based  on  a  contract  of  em- 
ployment entered  into  in  April,  there  can  be  no  recovery  on 
proof  showing  a  contract  made  in  August  following,  contain- 
ing similar  terms,  and  the  court  should  either  direct  a  verdict 
for  defendant,  or  permit  an  amendment  making  the  pleading 
conform  to  the  proof.  Hurst  v.  Williams,  31  Ky.  L.  R.  658, 
102  S.  W.  1176. 

Sec.  884a.    Variance  between  allegations  and  proof. 

Where,  in  an  action  by  a  broker  for  commissions  for  having 
procured  a  purchaser  for  defendant's  land,  the  plaintiff  alleged 
that  he  procured  a  certain  person  as  purchaser,  and  the  evi- 
dence showed  that  such  person  was  acting  as  agent  for  an 


PLEADINGS,  PRACTICE,  ETC.  739 

undisclosed   principal,   there   was   a   variance.     Matt  ?.  Minor 
(Gal.  App.  '09),  106  P.  244. 

Sec.  884b.    Variance  between  allegation  and  proof. 

Where,  in  a  suit  for  broker's  commissions  upon  an  express 
contract,  plaintiff  claimed  that  he  was  to  receive  all  of  the 
selling  price  above  $30  per  acre,  and  defendants  denied  any 
contract  for  commissions,  asserting  that  they  employed  plain- 
tiff as  an  attorney  only,  they  could  not  on  the  trial  prove  an 
express  contract  different  from  the  one  sued  on;  to-wit:  that 
they  were  to  receive  a  net  profit  of  50  per  cent,  on  the  trans- 
action. Dempster  v.  Cochran,  174  Fed.  587. 

Sec.  884c.    Variance  between  allegations  and  proof  as  to  ex- 
cess to  broker  for  commission. 

Proof  of  the  defendant  owner's  contract  to  convey  to  plaintiff 
for  a  certain  amount  in  cash,  leaving  him  to  retain  any  greater 
sum  which  he  might  receive  from  another  purchaser;  held,  at 
variance  with  an  allegation  that  defendant  employed  plaintiff  to 
procure  a  purchaser,  and  agreed  that  if  plaintiff  should  sell  the 
property  for  more  than  a  certain  sum  he  could  have  the  excess 
as  compensation  for  his  services  and  expenses.  Smith  v.  Tatum, 
79  S.  E.  775,  140  Ga.  719. 

Sec.  885.    Evidence  at  substantial  variance  with  allegations 
inadmissible. 

The  complaint  must  allege  either  performance  or  a  valid 
excuse  for  non-performance,  and  the  proof  must  conform  to 
the  allegations  of  the  petition.  Daly  v.  Russ,  86  Cal.  114,  24 
P.  867 ;  Norman  v.  Reuther,  54  N.  Y.  S.  152,  25  Misc.  161 ;  Tar- 
borough  v.  Cr eager  (Tex.  Civ.  App.  '03),  77  S.  W.  645;  Martin 
v.  Pagan,  88  N.  Y.  S.  472,  95  App.  Div.  154;  Hoefling  v.  Ham- 
bleton,  84  Tex.  517,  19  S.  W.  689. 

Sec.  886.    Allegation  that  land  was  conveyed  to  two  and  proof 

of  to  but  one,  not  a  material  variance. 

In  an  action  for  a  broker's  commissions  on  a  sale  of  land, 
where  the  complaint  alleges  that  the  land  was  conveyed  to  two 


740  AMEBICAN   LAW   REAL   ESTATE   AGENCY. 

persons,  and  the  finding  is  that  it  was  conveyed  to  one  of  these, 
the  variance  is  not  a  material  one.  Clifford  v.  Meyer,  6  Ind. 
App.  633,  34  N.  E.  23. 

Sec.   886a.     Evidence   which   did   not   establish   a  variance 

Where  the  basis  of  an  action  was  a  promise  to  pay  commissions 
for  the  sale  of  land,  it  was  immaterial  whether  the  land  belonged 
to  defendant  or  his  wife,  or  whether  it  was  a  separate  contract 
or  an  undivided  interest  in  the  contract;  and  hence,  evidence 
showing  such  facts  did  not  establish  a  variance.  Fritti  v.  Pendle- 
ton,  134  S.  W.  1186,  —  Tex.  Civ.  App.  — . 

Sec.  886b.    No  variance  where  joint  contract  to  pay  commis- 
sion alleged  and  several  contracts  proved. 

In  a  real  estate  agent's  action  for  a  commission,  alleging  a 
contract  whereby  defendants  jointly  contracted  to  pay  a  commis- 
sion for  a  sale  of  land,  wherein  the  court  found,  on  sufficient  evi- 
dence, that  defendants  had  listed  the  land  and  agreed  to  pay  a 
commission  as  alleged;  there  was  no  variance  on  the  ground  that 
the  evidence  showed  a  several  obligation  by  each  defendant  to 
pay  a  commission  on  his  part  of  the  land.  Keithley  v.  Ward,  217 
S.  W.  428,  —  Tex.  Civ.  App.  — . 

Sec.  887.    Variance  in  date  not  material,  where  contract  was 
made  before  the  sale  and  within  the  time. 

In  an  action  to  recover  commissions  under  a  contract  for  the 
sale  of  land,  proof  that  the  contract  was  made  on  the  exact  date 
alleged  is  not  required,  since,  while  it  is  necessary  to  allege  the 
date  with  convenient  certainty,  it  is  sufficient  if  shown  to  have 
been  prior  to  the  consummation  of  the  sale  and  within  the  time 
prescribed  by  the  statute  of  limitations.  Dillard  v.  Olalla  Min. 
Co,,  52  Ore.  126,  96  P.  678 ;  Miller  v.  Bohanan,  165  N.  W.  317, 
—  Iowa  Sup.  — ;  Cochran  v.  Staman,  167  N.  W.  1015,  201  Mich. 
632.  Contra,  Fortran  v.  Stowers  (Tex.  Civ.  App.  '08),  113  S.  W. 
631. 


PLEADINGS,  PRACTICE,  ETC.  741 

Sec.  887a.    Variance  in  the  terms  of  contract  released  agent 

from  liability. 

A  real  estate  agent  who  received  a  part  payment  of  the  pur- 
chase money  on  a  sale,  conditioned  that  the  offer  be  accepted 
by  the  owner  on  the  terms  and  conditions  specified  or  the  money 
be  returned,  is  not  liable  in  an  action  by  the  purchaser  for 
the  money,  if  the  offer  was  accepted  by  the  owner,  and  if,  at 
the  time  of  acceptance,  the  owner  and  purchaser,  by  mutual 
agreement,  vary  the  terms  and  conditions  upon  which  the 
agent  sold.  Fowler  v.  Quail,  36  Kan.  507,  13  P.  784.  See  also 
Sec.  293. 

Sec.  887b.    Action  on  contract  for  commission  and  proof  of 
breach  not  a  variance,  but  failure  of  proof. 

Under  Eev.  Laws  1910,  Sec.  4786,  where  the  cause  alleged  is 
on  a  broker's  contract  for  commission,  and  the  proof  shows  it  to 
be  a  cause  for  the  defendant  owner's  breach  of  his  contract  to 
sell  to  the  purchaser  procured,  there  is  not  a  variance  but  a  fail- 
ure of  proof.  Robinson  v.  OTcl.  Fire  Ins.  Co.,  155  P.  202,  —  Okl. 
Sup.  — . 

Sec.  887c.    Fatal  variance  between  allegation  and  proof. 

In  a  broker's  action  for  compensation,  there  is  a  fatal  variance 
between  allegation  that  plaintiff  sold  land  for  defendant  for  a 
specified  commission,  and  proof  that  land  was  owned  by  another, 
that  plaintiff  acted  for  the  owners'  agent,  and  that,  upon  the 
agent's  insolvency,  the  defendant  had  charge  of  his  affairs  and  re- 
ceived the  consideration  for  the  land.  Collins  v.  Hutchings,  194 
S.  W.  733,  —  Mo.  App.  — . 

Sec.  887d.    Failure  to  prove  that  broker  was  procuring  cause 
of  lease  not  a  fatal  variance. 

Where  complaint  alleged  that  defendants  agreed  with  plaintiff, 
in  consideration  of  his  performing  services,  to  give  him  exclusive 
right  to  secure  an  option  for  a  lease  on  defendants'  mining  prop- 
erty, and  that  if  lease  should  be  taken,  he  should  receive  what- 
ever he  obtained  above  a  royalty  of  thirty  cents  per  ton,  and  that 
if  defendants  should  themselves  option  the  property  it  should  not 


742  AMERICAN  LAW   REAL  ESTATE   AGENCY. 

affect  plaintiff's  right  to  compensation,  the  failure  to  prove  that 
plaintiff  was  the  procuring  cause  of  the  lease  was  not  a  fatal 
variance.  McRae  v.  Feigh,  173  N.  W.  655,  —  Minn.  Sup.  — . 

Sec.  887e.    Fatal  variance  between  contract  alleged  and  that 
proved. 

There  was  a  fatal  variance  between  pleading  and  proof,  where 
broker,  in  an  action  to  recover  commission  for  furnishing  a  pur- 
chaser, alleged  that  plaintiff  effected  a  sale  for  the  amount  asked, 
of  which  $2,000  was  to  be  paid  on  a  certain  date,  possession  of 
part  to  be  given  in  the  fall,  and  full  possession  to  be  given  the 
next  spring,  and  the  contract  that  the  owner  proved  provided 
that  the  owner  was  to  receive  a  $3,000  first  payment,  and  the 
crop  for  the  year  was  to  be  reserved.  Cook  v.  Salisbury,  225  S. 
W.  112,  —  Mo.  App.  — . 

Sec.  887f .    Proof  of  agreement  to  split  commission  does  not 
support  allegation  of  per  centage  on  purchase  price. 

A  complaint  alleging  that  defendant,  the  second  broker  with 
whom  plaintiff  listed  lands,  agreed,  in  event  of  sale,  to  pay  plain- 
tiff one-half  of  a  percentage  of  the  purchase  price,  is  not  sup- 
ported by  proof  that  defendant  agreed  to  split  commission.  Por- 
ter v.  Cox,  225  S.  W.  84,  —  Tex.  Civ.  App.  — . 

Sec.  887g.    No  variance  where  proof  included  the  terms  set 
up  in  the  complaint. 

Where  complaint  alleged  the  plaintiff  was  employed  as  a  real 
estate  broker  to  procure  a  purchaser  for  land  for  $55,000,  and  that 
defendants  agreed  to  pay  plaintiff  a  commission  of  2%  of  stated 
selling  price,  a  finding  setting  up  a  like  employment,  "if  he  se- 
cured a  purchaser  on  terms  satisfactory  to  the  defendants,"  in- 
cluded the  terms  set  up  in  the  complaint,  and  there  was  no  vari- 
ance. Gardner  v.  Buschler,  111  A.  589,  —  Conn.  Sup.  — . 


CHAPTER  XV. 
QUESTIONS  TO  BE  DETERMINED  BY  THE  JURY. 

Sec.  888.    In  an  action  for  commissions,  whether  parties  en- 

tered  into  a  contract,  a  question  for  the  jury. 
In  an  action  to  recover  commissions  for  purchasing  prop- 
erty for  defendant,  whether  a  contract  such  as  stated  in  the 
complaint  was  entered  into,  was  a  question  for  the  jury,  and 
it  was  error  to  direct  a  verdict  for  plaintiff.  Anderson  v. 
Johnson  (N.  D.  Sup.  '07),  112  N.  W.  139;  Horwitz  v.  Pepper, 
128  Mich.  688,  87  N.  W.  1034;  Shultz  v.  Eberle,  124  Wis.  594, 
102  N.  W.  1055;  Ballentine  v.  Mercer,  130  Mo.  App.  605,  109 
S.  W.  1037;  Mead  v.  Arnold,  131  Mo.  App.  314,  110  S.  W.  656; 
Queen  v.  Jennings,  108  A.  379, *—  N.  J.  Sup.  *-*. 

Sec.  889.    If  party  adduces  evidence  to  justify  a  verdict,  error 

to  take  from  the  jury. 

It  is  the  peculiar  province  of  the  jury  to  pass  upon  questions 
of  fact,  and  the  issues  of  fact,  as  well  as  of  law  submitted  to 
the  court  for  determination.  A  jury  not  having  been  waived, 
it  was  error  for  the  court  to  undertake  to  decide  upon  the 
weight  of  the  evidence,  and  withdraw  from  the  consideration 
of  the  jury,  a  phase  of  the  controversy  upon  which  plaintiff 
was  entitled  to  have  them  pass.  Morey  v.  Harvey,  18  Colo.  40, 
31  P.  719 ;  Blackwell  v.  Greenbaum,  50  111.  App.  143 ;  Eyan  v. 
Page,  123  Iowa,  246,  98  N.  W.  768 ;  Tracey  Ld.  Co.  v.  Polk  Ld. 
&  Ln.  Co.,  131  Iowa,  40,  107  N.  W.  1029;  West  v.  Prewitt,  19 
Ky.  L.  R.  1480,  43  S.  W.  467;  Wright  v.  Young,  176  Mass. 
100,  57  N.  E.  212;  Rogers  v.  Evan.  Bap.  Ben.,  etc.,  So.,  168 
Mass.  592,  47  N.  E.  434;  West  v.  Demme,  128  Mich.  11,  87  N. 
W.  95;  Marx  v.  Otto,  117  Mich.  510,  76  N.  W.  7;  Crevier  v. 
Stephen,  40  Minn.  288,  41  N.  W.  1039 ;  Finch  v.  Guardian  Tr. 
Co.,  92  Mo.  App.  263;  Ldngstreth  v.  Korb,  64  N.  J.  L.  112, 
44  A.  934;  Grade  v,  Stevens,  171  N.  Y.  658,  63  N.  E.  1117; 
Condict  v.  Cowdrey,  123  N.  Y.  463,  25  N.  E.  946;  Beddin  v. 

743 


744  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Dam,  64  N.  Y.  S.  611,  51  App.  Div.  636;  Tkornal  v.  Pitts, 
36  N.  Y.  Super.  Ct.  379;  Meeslahn  v.  Englehard,  20  N. 
Y.  S.  900,  1  Misc.  412;  Meyer  v.  Strauss,  58  N.  Y.  S.  904,  42 
App.  Div.  613 ;  Ringold  v.  Rhode,  132  Pa.  St.  189,  18  A.  1118 ; 
Clendenin  v.  Pancoast,  75  Pa.  St.  213;  McCaffery  v.  Page,  20 
Pa.  Super.  Ct.  400;  Roeder  v.  Butler,  19  Pa.  Super.  Ct.  604; 
Blair  v.  Slosson,  27  Tex.  Civ.  App.  403,  66  S.  W.  112;  Center 
v.  Conglomerate  Min.  Co.,  23  Utah,  165,  64  P.  362;  Dunsmier 
v.  Loivenburg,  31  Canada  Supreme  Ct.  334;  Lamson  v.  Main, 
43  N.  Y.  Super.  Ct.  24. 

Sec.  890.    Question  of  ability,  readiness  and  willingness  of 
customer  to  perform  the  contract  is  for  the  jury. 

Whether  the  broker's  customer  was  able,  ready  and  willing 
to  enter  into  the  transaction  is  for  the  jury  to  determine.    Mc- 
Dermott  v.  Mahoney,  119  Iowa,  470,  93  N.  W.  499 ;  Hamill  v. 
Basenhover,  110  Iowa,  369,  81  N.  W.  600;  Finch  v.  Guardian 
Tr.  Co.,  92  Mo.  App.  263 ;  Middleton  v.  Thompson,  163  Pa.  St. 
112,  29  A.  796;  Smye  v.  Groesbeck   (Tex.  Civ.  App.   '02),  73 
S.  W.  972.     And  whether  the  failure  to  mention  the  name  of 
the  purchaser  to  the  principal  was  a  fraudulent  concealment. 
Newhall  v.  Pierce,  115  Mass.  457;  Geery  v.  Pollock,  44  N.  Y. 
S.  673,  16  App.  Div.  321;  Ames  v.  McNally,  26  N.  Y.  S.  71,  6 
Misc.  93 ;  Page  v.  Voorhies,  16  N.  Y.  S.  101 ;  Vandevort  v.  Wheel- 
ing Steel,  etc.,  Co.,  194  Pa.  St.  118,  45  A.  86;  McCaffery  v. 
Page,  20  Pa.  Super.  Ct.  400 ;  Heldmyer  v.  Cleaver,  104  A.  635,  — 
Del.  Super.  — ;  Thompson  v.  Ryan,  174  N".  W.  15,  opin.  mod.  on 
re.,  176  N.  W.  175,  —  Iowa  Sup.  — ;  Rameszano  v.  Avensino,  189 
P.  681,  —  Nev.  Sup.  — . 

Sec.  891.    Whether  defendant  prevented  sale,  exchange,  lease 
or  loan. 

Whether  the  defendant  prevented  a  sale,  an  exchange,  a  lease 
or  a  loan  is  for  the  jury  to  determine.  McDermott  v.  Mahoney, 
119  Iowa,  470,  93  N".  W.  499;  Wright  v.  Young,  176  Mass.  100, 
57  N.  E.  212;  Green  v.  Wright,  36  .Mo.  App.  298;  Hancock  v. 
Stacey  (Tex.  Civ.  App.  '09),  116  S.  W.  177;  Longworth  v.  Stev- 


PLEADINGS,   PRACTICE,  ETC.  745 

ens,  145  S.  W.  257,  —  Tex.  Civ.  App.  — ;  White  v.  Enckson,  169 
K  W.  535,  —  Minn.  Sup.  — ;  Stewart  v.  Chittack,  222  S.  W.  863, 

—  Mo.  App.  — ;  Baskett  v.  Jones,  225  S.  W.  158,  —  Ky.  Ct.  App. 
— ;  Holt  v.  Calavay,  226  S.  W.  179,  —  Ark  Sup.  — . 

Sec.  891a.  Whether  under  the  contract  the  broker's  commis- 
sions were  not  to  become  due  until  a  lease  had  been 
signed  by  the  parties  was  a  question  for  the  jury. 

In  an  action  by  a  broker  for  commissions,  evidence  exam- 
ined and  held  that,  whether  there  was  a  contract  between  the 
parties  by  which  plaintiff's  commission  was  not  to  become  due 
until  there  had  been  a  lease  signed  by  the  parties  was  a  ques- 
tion for  the  jury.  Benedict  v.  Pincus,  95  N.  Y.  S.  1042,  109 
App.  Div.  20.  Also,  as  to  whether  commissions  were  to  be  paid 
before  title  passed..  Dekremen  v.  Clothier,  96  N.  Y.  S.  525,  109 
App.  Div.  481. 

Sec.  892.  Whether  the  services  were  rendered  with  expecta- 
tion of  reward. 

Whether  the  services  performed  by  plaintiff  in  finding  a  pur- 
chaser were  rendered  with  the  mutual  understanding  that  they 
were  to  be  paid  for,  should  have  been  submitted  by  the  jury. 
Armstrong  v.  Ft.  Edward,  159  N.  Y.  315,  53  N.  E.  1116 ;  Darling 
v.  Howe,  14  N.  Y.  S.  561,  60  Hun,  578;  Bullock  v.  Menninger 
(Ky.  Ct.  App.  J10),  125  S.  W.  256;  Piper  v.  Allen,  219  S.  W.  98, 

—  Mo.  App.  — . 

Sec.  893.  Whether  employed  as  a  broker  and  authorized  to 
do  the  acts  claimed. 

It  is  for  the  jury  to  determine  whether  plaintiff  was  em- 
ployed as  a  broker  and  authorized  to  perform  the  acts  for 
which  he  claims  compensation;  in  case  of  a  conflict  of  testi- 
mony it  is  error  for  the  court  to  direct  a  verdict.  Stephens 
v.  Bailey,  149  Ala.  256;  42  S.  740;  Ryan  v.  Page,  123  Iowa, 
246,  98  N.  W.  768;  Monk  v.  Parker,  180  Mass.  246,  63  N.  E. 
793 ;  Codd  v.  Seitz,  94  Mich.  191,  53  N.  W.  1057 ;  M erriam  v. 
Johnson,  86  Minn.  61,  90  N.  W.  116 ;  Cody  v.  Dempsey,  83  N. 
Y.  S.  899,  86  App.  Div.  335 ;  Reddin  v.  Dam,  64  N.  Y.  S.  611, 
51  App.  Div.  636 ;  Moore  v.  Boehm,  26  N.  Y.  S.  67,  6  Misc.  38 ; 


746  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Tieck  v.  McEenna,  101  N.  Y.  S.  317,  115  App.  Div.  701;  Black 
v.  Snoolc,  204  Pa.  St.  119,  53  A.  648;  Dixon  v.  Daub,  17  Pa. 
Super.  Ct.  168;  Center  v.  Conglomerate  Min.  Co.,  23  Utah,  165, 
64  P.  362 ;  Myers  v.  Kilgin,  160  S.  W.  569,  177  Mo.  App.  524 ; 
Tupy  v.  Cech,  199  111.  App.  496;  Levine  v.  Gray,  176  N.  Y. 
Sup.  77. 

Sec.  894.    The  question  of  the  authority  of  principal's  agent 
to  employ  a  broker. 

The  authority  of  the  principal's  agent,  in  this  case  his  father, 
to  employ  a  broker  is  a  question  of  fact  that  should  have  been 
submitted  to  the  jury.  Phillips  v.  Hazen,  122  Iowa,  475,  98  N". 
W.  305;  Codd  v.  Seitz,  94  Mich.  191,  53  N.  W.  1057;  Groscup 
v.  Downey,  105  Md.  273,  65  A.  930;  Lanhart  v.  Bean,  161  N.  W. 
464,  —  Iowa  Sup.  — . 

Sec.  895.    Question  of  ratification. 

Questions  involving  ratification  should  be  submitted  to  the  jury. 
Center  v.  Conglomerate  Min.  Co.,  23  Utah,  165,  64  P.  362 ;  Mc- 
Mullin  v.  Reighard,  92  A.  747,  246  Pa.  589;  Maddox  v.  Harding, 
135  N.  W.  1019,  91  Neb.  292;  West  v.  Kriby  Lumber  Co.,  193 
S.  W.  172,  —  Tex.  Civ.  App.  — . 

Sec.  896.    Whether  the  broker  was  the  procuring  cause  of  the 
transaction. 

Whether  the  broker  was  in  fact  the  procuring  cause  of  the 
transaction  entered  into  by  the  principal  with  the  customer 
is  properly  left  to  the  jury  to  determine.  Smith  v.  Anderson, 
2.  Ida.  (Harb.),  537,  21  P.  412;  Colvin  &  Rinard  v.  Lyons,  96 
P.  572,  15  Idaho,  180 ;  Rounds  v.  Alle,  116  Iowa,  345,  89  N.  W. 
1098 ;  Reid  v.  McNerny,  128  Iowa,  350,  103  N.  W.  1001 ;  Roth- 
enberger  v.  Schoningerg,  30  Ky.  L.  R.  1018,  99  S.  W.  1150; 
Hosmer  v.  Fuller,  168  Mass.  274,  47  N.  E.  94;  Kinder  v.  Pope, 
106  Mo.  App.  506,  80  S.  W.  315;  Armstrong  v.  Ft.  Edward, 
159  N.  Y.  315,  53  N.  E.  1116;  Smith  v.  McGovern,  65  N.  Y.  574; 
Palmer  v.  Durand,  70  N.  Y.  S.  1105,  62  App.  Div.  467 ;  Reddin 
v.  Dam,  64  N.  Y.  S.  611,  51  App.  Div.  636 ;  Condict  v.  Cowdrey, 
19  N.  Y.  S.  699,  61  N.  Y.  Super.  Ct.  315;  Smith  v.  Smith,  1 


PLEADINGS,  PRACTICE,  ETC.  747 

Sweeney  (N.  Y.),  552;  BicJcert  v.  Hoffman,  19  1ST.  Y.  S.  472; 
Bonwell  v.  Howes,  1  N.  Y.  S.  435;  Shipman  v.  Freeh,  1  N.  Y. 
S.  67;  Burchfield  v.  Griffith,  10  Pa.  Super  Ct.  618;  Van  Tobel 
v.  Stetson,  etc.,  Mill  Co.,  32  Wash.  683,  73  P.  788;  Willey  v. 
Rutherford,  108  Wis.  35,  84  N.  W.  14;  Burden  v.  Briquilet,  125 
Wis.  341,  104  N.  W.  83;  Goldsmith  v.  Coxe,  80  S.  C.  341,  61 
S.  E.  555;  Murray  v.  Curry,  7  C.  &  P.  (Bug.)  584,  32  Exch.  771; 
Jemoney  v.  Tollman,  40  N.  Y.  Super.  Ct.  436;  McLaughlin  v. 
Campbell  (N.  J.  Err.  &  App.  '09),  74  A.  530;  Shead  v.  Louisiana 
Lumber  Co.,  182  111.  App.  310;  Kurtz  v.  Payne  Inv.  Co.,  135  N. 
W.  1075,  156  Iowa,  376,  pet.  for  re.  over,  but  opin.  mod.,  137 
N.  W.  460;  Seevers  v.  Cleveland  Coal  Co.,  138  N.  W.  793,  158 
Iowa,  574,  Ann.  Gas.  1915  D,  188;  Duke  v.  Graham,  143  N.  W. 
817,  163  Iowa,  272;  BlaJceslee  v.  Peabody,  147  N.  W.  570,  180 
Mich.  408 ;  Coffman  v.  Dyas  Realty  Co.,  159  S.  W.  842,  176  Mo. 
App.  692;  Mason  v.  James  M.  Carpenter  Realty  Co.,  179  S.  W. 
945,  —  Mo.  App.  — ;  Young  v.  Millan,  183  S.  W.  355,  —  Mo. 
App.  — ;  Peters  v.  Holmes,  45  Pa.  Super.  Ct.  278;  Byrne  v.  Oms- 
berg,  164  N.  Y.  Sup.  674;  Fawley  v.  Sheldon,  163  K  W.  585,  — 
Iowa  Sup-  —  ;  Ford  v.  Cole,  195  S.  W.  661,  —  Tex.  Civ.  App.  — ; 
Seampson  v.  Vanderwilt,  173  P.  297,  106  Kan.  199 ;  M .  N.  Clark 
&  Co.  v.  Monson,  166  N.  W.  576,  —  Iowa  Sup.  — ;  Rowland  v. 
Progressive  Inv.  Co.,  202  S.  W.  257,  —  Mo.  App.  — ;  E.  S.  Truitt 
&  Co.  v.  Gardner,  203  S.  W.  638,  —  Mo.  App.  — ;  Boardman  v. 
Courteen,  167  N.  W.  814,  167  Wis.  625;  Soper  v.  Deal,  175  P. 
390,  —  Kan.  Sup.  — ;  Balto.  Car  Wheel  Co.  v.  Clink,  104  A.  359, 

—  Md.  Sup.  — ;  Smith  v.  Chapin  Home  for  Aged  &  In.,  171  N. 
Y.  Sup.  745 ;  Buck  v.  Woodson,  209  S.  W.  244,  —  Tex.  Civ.  App. 
— ;  Kisldk  v.  Roberts,  177  N".  Y.  Sup.  194;  Berraff  v.  Bergmann, 
174  N.  W.  901,  —  Wis.  Sup.  — ;  Murphy  v.  LinsTcy,  109  A.  412, 

—  Conn.  Sup.  — ;  Schmind  v.  Lacey,  178  N.  W.  267,  —  Neb. 
Sup.  — ;  Barney  v.  Beakley,  224  S.  W.  531,  —  Tex.  Civ.  App.  — ; 
BasTcett  v.  Jones,  225  S.  W.  158,  —  Ky.  Ct.  App.  — .     See  Sec. 
446. 

Sec.  897.    Whether  the  contract  given  to  the  broker  was  ex- 
clusive. 

In  an  action  to  recover  commissions  for  a  sale  of  real  es- 
tate, plaintiff  alleged  a  contract   whereby   defendant  agreed  to 


748  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

pay  him  a  certain  sum  if  he  would  find  a  purchaser  for  his 
property,  and  that  he  did  so;  defendant  alleged  that  plaintiff 
had  not  the  exclusive  right  to  dispose  of  the  property  under 
the  agreement,  and  that  defendant  had  sold  it  himself.  Held, 
to  present  a  question  of  fact  for  the  jury.  Black  v.  Snook,  204 
Pa.  St.  119,  53  A,  648;  Rothenburger  v.  Schoningerg,  30  Ky.  L. 
E.  1018,  99  S.  W.  1150;  Cesana  v.  Johnson,  122  N.  E.  444,  — 
Mass.  Sup.  — ;  Harris  v.  Millikan,  208  S.  W.  633,  —  Mo.  App.  — . 
Where  the  authority  is  conferred  on  the  agent  by  a  written  in- 
strument its  construction  is  for  the  court.  Grosscup  v.  Downey, 
105  Md.  273,  65  A.  930 

Sec.  898.    Proper  to  take  from  jury  when  broker  sold  for  less 

than  instructions  authorized. 

A  broker  hired  to  sell  property  at  a  certain  price,  can  not 
recover  commissions  for  effecting  a  sale  at  a  lower  price,  and 
the  appellate  court  held  that  the  case  was  properly  taken  from 
the  jury.  Williams  v.  McGraw,  52  Mich.  480,  18  N.  W.  227. 
See  also  Sec.  408. 

Sec.  899.    Whether  agent  procuring  mortgage  with  wrong 

description  was  guilty  of  negligence. 

In  an  action  by  a  principal  against  her  agent  for  negligence 
in  procuring  a  mortgage  to  be  executed  in  her  favor  in  which 
the  land  was  wrongly  described.  Held,  that  it  should  be  left 
to  the  jury  to  say  whether  the  plaintiff  was  guilty  of  contribu- 
tory negligence  in  not  discovering  the  mistake,  which  was  pat- 
ent upon  the  face  of  the  mortgage.  Munford  v.  Miller,  1  111. 
App.  62.  See  also  Sec.  913. 

Sec.  900.    Where  the  rate  of  compensation  is  not  fixed  a  ques- 
tion for  the  jury. 

Where  an  agent  has  been  employed  to  sell  land  at  no  fixed 
rate  of  compensation,  the  jury  are  to  fix  the  value  of  his  ser- 
vices in  the  premises  from  the  work  done ;  and  in  fixing  the 
amount,  the  rate  usually  paid  professional  land  brokers  for 
such  services  may  be  taken  into  consideration.  Ruckman  v. 


PLEADINGS,  PRACTICE,  ETC.  749 

Bergholz,  38  N.  J.  L.  531;  Burdon  v.  Briquilet,  125  Wis.  341, 
104  N.  W.  83.     See  also  Sec.  513. 

Sec.  901.    Where  the  claim  of  plaintiff  to  commissions  is  con- 
tested, has  a  right  to  go  to  the  jury. 

In  an  action  to  recover  $100  agreed  to  be  paid  for  procur- 
ing a  purchaser  of  certain  property,  plaintiff  testified  that  de- 
fendant, to  whom  the  owner  of  the  property  owed  money, 
wished  the  property  sold  so  as  to  get  his  money,  and  agreed 
to  pay  plaintiff  $100  if  he  found  a  purchaser,  no  price  being 
named;  that  plaintiff  brought  one  L.  to  look  at  the  property, 
but  he  refused  to  buy,  when  defendant  asked  $5,000  for  it; 
other  parties  afterward  procured  L.  to  purchase  at  $2,700; 
plaintiff  claimed  that  the  sale  was  indirectly  due  to  his  efforts, 
and  that  the  defendant  had  sold  through  other  persons  to  keep 
from  paying  plaintiff;  defendant  testified  that  he  had  nothing 
to  do  with  the  sale  after  L.  had  refused  to  purchase  at  $5,000, 
and  that  he  agreed  to  pay  plaintiff  if  he  procured  a  purchaser 
at  that  price;  the  persons  who  finally  made  the  sale  testified 
that  the  plaintiff  had  nothing  to  do  with  the  sale.  Held,  that 
plaintiff  had  a  right  to  go  to  the  jury  on  the  evidence.  Kelso 
v.  Woodruff,  88  Mich.  290,  50  N.  W.  249 ;  Monsseau  v.  Dorsett, 
80  Ga.  566,  5  S.  E.  780;  Ferguson  v.  Glaspie,  38  Minn.  418,  38 
N.  W.  352;  Coolican  v.  Mil  &  St.  St.  M.  Ins.  Co.,  79  Wis.  471, 
48  N.  W.  717;  Dickinson  v.  Hahn  (S.  D.  Sup.  '09),  119  N.  W. 
1034;  Mutchnick  v.  Friedman,  120  N.  Y.  S.  375;  Gibson  v.  Mo- 
Lane,  148  P.  288,  17  Ariz.  61;  Ruppert  v.  Muelling,  155  N.  W. 
1039,  132  Minn.  33;  Rosenweig  v.  Rabuiischek,  150  N".  Y.  Sup. 
353,  166  App.  Div.  448;  Nevins  v.  Hughes,  84  S.  E.  769,  168  N. 
C.  477;  Stanley  v.  Whitlow,  168  S.  W.  840,  181  Mo.  App.  461; 
Hanan  v.  McLeod,  141  K  W.  1130,  93  Neb.  783;  Handley  v. 
Shaffer,  59  S.  286,  177  Ala.  636 ;  Worthan  v.  Stewart,  172  S.  W. 
855,  116  Ark.  294;  Paulson  v.  Rourke,' 145  P.  711,  26  Colo.  App. 
488;  McCombs  v.  Moss,  181  S.  W.  907,  121  Ark.  533;  Hamilton 
v.  Hathaway,  133  S.  W.  629,  152  Mo.  App.  483 ;  Duncan  v.  Tur- 
ner, 151  S.  W.  816,  171  Mo.  App.  661;  Paries  v.  Sullivan,  152 
S.  W.  704,  —  Tex.  Civ.  App.  — ;  Cohen  v.  Ames,  91  N.  E.  212, 
205  Mass.  186;  Nooning  v.  Miller,  165  S.  W.  1119,  178  Mo.  App. 


750  AMEEICAN  LAW   BEAL  ESTATE   AGENCY. 

297;  Wood  v.  Foster,  181  111.  App.  409;  Roney  v.  Healy,  135  N. 
W.  959,  170  Mich.  46;  Nelson,  Lee  &  Green  v.  Daly,  163  N.  Y. 
Sup.  788;  Baker  v.  Bdkewell,  208  S.  W.  844;  Thomas  v.  Wychoff, 
174  N.  W.  26,  —  Iowa  Sup.  — ;  Porter  v.  Cox,  225  S.  W.  84,  — 
Tex.  Civ.  App.  — . 

Sec.  902.  Where  agent  procured  purchaser  and  two-eighth 
interest  unpurchasable,  whether  entitled  to  full  commis- 
sions. 

A  real  estate  broker  had  found  a  purchaser  at  the  price 
stipulated  for  land  purported  to  be  owned  by  his  principal, 
and  was  then  referred  by  him  to  other  tenants  in  common, 
with  whom  he  subsequently  made  terms  at  a  higher  price,  ex- 
cept two-eighths  interest  owned  by  them,  but  did  not  disclose 
this  to  his  first  principal  Held,  there  was  no  duty  owing  by 
the  agent  as  to  the  outstanding  two-eighths,  and  it  was  not  in- 
cumbent upon  him  to  inform  his  principal,  and  in  a  suit  by 
the  broker  for  his  commissions  against  his  original  principal, 
he  was  entitled  to  go  to  the  jury  upon  the  question  of  fulfill- 
ment of  the  terms  of  the  original  contract.  Black  v.  Barr,  14 
Pa.  Super.  Ct.  98,  651. 

Sec.  902a.    On  breach  by  owner,  whether  broker  entitled  to 
full  commission  a  question  for  the  jury. 

Where  defendant  by  a  breach  of  contract  prevented  the  payment 
of  the  purchase  price  of  real  estate,  question  whether  plaintiff,  as 
his  sales  agent,  was  entitled  to  full  commission,  under  the  con- 
tract, before  40  per  cent,  of  purchase  price  was  paid;  held,  ques- 
tion for  the  jury.  Realty  Bond  &  Finance  Co.  v.  Point  Richmond 
Canal  &  Land  Co.,  152  P.  433,  171  Cal.  238. 

Sec.  903.  Question  of  allowing  interest  on  claim  for  commis- 
sions is  for  the  jury. 

The  matter  of  allowing  interest  on  a  claim  for  commissions  for 
producing  a  purchaser  should  be  left  to  the  discretion  of  the  jury. 
Schamberg  v.  Auxier,  101  Ky.  292,  19  Ky.  L.  E.  548,  40  S.  W. 
911. 


PLEADINGS,  PRACTICE,  ETC.  751 

Sec.  904.    Evidence  of  continuing  offer,  acceptance  and  per- 
formance by  plaintiff. 

In  an  action  for  services  in  selling  an  estate  for  the  defend- 
ant, it  appeared  that  the  defendant  told  the  plaintiff  that  he 
would  give  him  a  certain  sum  if  he  would  obtain  a  purchaser, 
that  the  plaintiff,  who  was  not  a  broker,  neither  did  nor  said 
anything  at  the  time  to  show  that  he  accepted  the  offer,  but 
within  a  few  days  told  J.  S.  that  the  defendant  wanted  to 
sell,  and  took  him  to  see  defendant,  but  did  not  find  the  de- 
fendant; and  that  afterwards  J.  S.  bought  the  estate,  but  the 
defendant  did  not  know  till  after  the  sale  that  the  plaintiff 
had  done  anything  to  aid  it.  Held,  that  there  was  evidence 
for  the  jury  of  a  continuing  offer,  of  an  acceptance  and  of  a 
performance  by  the  plaintiff  of  the  contract  thus  formed.  Born- 
stein  v.  Lane,  104  Mass.  214. 

Sec.  905.    Whether  the  attorney  in  fact  executed  and  delivered 
a  certain  paper  to  the  broker. 

In  an  action  by  a  broker  for  the  recovery  of  commissions 
earned  in  procuring  an  exchange  of  real  property,  evidence 
held  to  require  submission  to  the  jury  of  the  question  whether 
the  attorney  in  fact  of  the  owner  executed  a  certain  paper 
and  delivered  it  to  the  broker  with  the  intention  of  authoriz- 
ing him  to  negotiate  the  transaction.  Cody  v.  Dempsey,  83  N. 
Y.  S.  899,  8C  App.  Div.  335. 

Sec.  906.    In  conflicting  testimony  as  to  a  contract,  the  mean- 
ing thereof  for  the  jury. 

In  an  action  to  recover  a  broker's  commissions  for  a  sale 
of  real  estate,  the  contract  provided  that  on  a  sale  the  broker 
should  be  entitled  to  a  commission  of  $150  "if  title  is  taken," 
there  was  evidence  that  the  broker  procured  a  contract  for  the 
purchase  of  the  property  at  a  price  satisfactory  to  defend- 
ants ;  the  purchaser  did  not  take  title,  and  the  defendant  urged 
the  fact  as  a  defense;  the  broker  testified  that  at  the  time  of 
his  employment  the  defendant  had  not  then  acquired  title,  and 
that  the  clause  "if  title  is  taken"  referred  to  the  conveyance 
to  the  defendant  by  the  prior  owners.  Held,  that  the  question 


752  AMERICAN   LAW   EEAL   ESTATE   AGENCY^ 

of  the  meaning  of  the  contract  was  for  the  jury.  Thill  v. 
Schonzeit,  93  N.  Y.  S.  383,  104  App.  Div.  151 ;  Condict  v.  Cow- 
drey,  123  N.  Y.  463,  25  N.  E.  946;  Lechnyr  v.  Germansky,  113 
N.  Y.  S.  969;  Weaver  v.  Richards,  156  Mich.  320;  Schlegal  v. 
Fuller,  149  P.  1118,  —  Okl.  Sup.  — ;  Norman  v.  JEZZis,  143  P. 
1112,  74  Or.  168;  Dickinson  v.  #a7m,  119  N.  W.  1034,  23  S.  D. 
65;  Weaver  v.  Gaskins,  180  ill.  App.  28;  Hill  v.  Z>afcw,  143  N. 
W.  821,  162  Iowa,  103;  Thompson  v.  Soule,  83  A.  1103,  109  Me. 
286;  Gordon  v.  First  Univer.  Society  of  Marlborough,  104  N.  E. 
448,  217  Mass.  30;  Heimberger  v.  Eudd,  138  N".  W.  374,  30  S. 
D.  289;  Inman  v.  Brown,  147  S.  W.  652,  —  Tex.  Civ.  App.  — ; 
Paysant  v.  Candill,  154  P.  170,  89  Wash.  250.  See  sec.  1131. 

Sec.  906a.     Question  as  to  modification  of  contract  for  the 
jury- 

In  an  action  to  recover  commissions  for  selling  real  estate, 
where  it  appears  that  the  commissions  were  to  be  paid  as  certain 
installments  of  the  purchase  money  were  received,  the  case  is  for 
the  jury,  where  the  evidence,  although  contradictory,  tends  to 
show  that  after  certain  installments  had  been  paid,  the  original 
contract  between  the  seller  and  the  purchaser  had  not  been  abro- 
gated, but  had  been  modified,  and  in  the  modified  form  had  been 
executed.  Papagian  v.  Scott,  37  Pa.  Super.  Ct.  560. 

In  an  action  by  a  real  estate  broker  for  commission  on  a  sale, 
whether  it  could  be  inferred  that  a  conversation  between  plain- 
tiff and  defendant  not  only  had  reference  to  an  extension  of  the 
option  defendant  had  drawn  up  in  favor  of  his  lessee,  a  prospec- 
tive buyer  procured  by  plaintiff,  which  provided  for  the  payment 
of  a  commission  to  plaintiff,  but  also  revoked  the  agreement  that 
plaintiff,  if  he  put  through  a  sale,  would  be  entitled  to  a  broker- 
age of  5% ;  held,  a  question  of  fact  for  the  jury.  Kislak  v.  Rob- 
erts, 177  N.  Y.  Sup.  194. 

Sec.  907.    Whether  broker  did  not  act  merely  as  sub-agent. 

In  an  action  by  a  real  estate  broker  for  his  commissions  in 
securing  a  purchaser,  evidence  examined  and  held  to  require 
submission  to  the  jury  of  the  question  whether  the  broker  did 


PLEADINGS,  PBACTICE,  ETC.  753 

not  act  merely  as  sub-agent  of  other  brokers.     J.  B.  Watkin's 
Ld.  Co.  v.  Thetford  (Tex.  Civ.  App.  '06),  96  S.  W.  72. 

Sec.  908.  Error  to  direct  verdict  for  defendant  because  hus- 
band did  not  join,  should  have  been  left  to  the  jury. 
In  an  action  by  a  real  estate  broker  to  recover  compensa- 
tion for  furnishing  a  purchaser  for  defendant's  land,  where  a 
part  of  the  consideration  to  be  paid  was  an  exchange  of  home- 
stead property  owned  by  the  customer,  it  was  error  to  direct 
a  verdict  for  defendant,  on  the  ground  that  the  contract  could 
not  be  specifically  enforced,  for  the  reason  that  the  husband 
did  not  join  in  the  contract  with  the  wife,  who  owned  the  land, 
nor  in  the  offer  to  convey,  where  there  was  evidence  tending 
to  show  that  they  both  executed  the  contract  as  well  as  the 
deed  offered  in  performance,  and  that  they  were  ready  and  will- 
ing to  perform,  since  such  question  should  have  been  submit- 
ted to  the  jury.  Hamill  v.  Baumhover,  110  Iowa,  369,  81  N.  W. 
600. 

Sec.  909.    Which  of  rival  brokers  effected  a  loan. 

Plaintiff,  a  broker,  called  on  one  of  a  committee  of  two  ap- 
pointed by  a  corporation  to  secure  a  loan  for  it,  and  stated 
that  the  loan  could  be  obtained  from  a  certain  company,  and 
that  he  had  spoken  to  the  company,  and  would  expect  a  com- 
mission if  defendant  made  the  loan;  the  committee  said  that 
if  another  broker  did  not  succeed  by  the  next  day,  they  would 
be  glad  to  have  plaintiff  make  the  commission ;  on  the  next  day, 
the  committeeman  told  plaintiff  that  the  other  broker  was  un- 
able to  procure  the  loan,  and  plaintiff  again  stated  the  com- 
pany of  which  he  had  spoken;  the  committeeman  stated  that 
he  wished  information  as  to  the  matter  of  taxes,  and  plaintiff 
introduced  to  him  a  person  who  gave  the  desired  information; 
said  committeeman  was  in  constant  communication  with  his  col- 
league, and  testified  that  he  communicated  to  him  all  mat- 
ters of  interest  in  regard  to  the  loan;  the  loan  was  finally  ob- 
tained from  the  company  suggested  by  plaintiff.  Held,  that 
plaintiff's  right  to  a  commission  was  a  question  for  the  jury. 
Rogers  v.  Evan.  Bap.  Ben.  &  Mis.  So.,  168  Mass.  592,  47  N.  E. 


754  AMERICAN  LAW   KEAL  ESTATE   AGENCY. 

434;  Cadigan  v.  Crabtree,  192  Mass.  233,  78  K  E.  412;  Fox  v. 
Cammeyer,  Inc.,  156  N.  Y.  Sup.  1046,  93  Misc.  Eep.  180;  Mc- 
Laughlin  &  Co.  v.  Southern  Hotel  Co.,  177  N.  Y.  Sup.  323. 

Sec.  910.    Error  to  submit  to  jury  where  broker  carried  on 
no  negotiations  with  the  purchaser. 

Where,  in  an  action  by  the  assignee  of  a  broker  to  recover 
commissions  for  a  sale  of  real  estate,  plaintiff's  assignor  testified 
that  he  was  acting  for  the  purchaser  when  he  approached  defend- 
ant, and  that,  on  the  failure  of  these  negotiations,  he  mentioned 
other  prospective  purchasers,  but  told  defendant  that  they  were 
his  customers,  and  it  was  shown  that  plaintiff's  assignor  carried 
on  no  negotiations  with  the  party  who  purchased  the  property, 
and  did  not  meet  the  party  until  a  week  after  the  sale,  it  was 
error  to  submit  the  case  to  the  jury.  Whiteley  v.  Terry,  82  N.  Y. 
S.  89,  83  App.  Div.  197;  Maddux  v.  St.  L.  Union  Trust  Co.,  178 
S.  W.  669,  186  Mo.  App.  138. 

Sec.  910a.    Evidence  held  insufficient  to  submit  to  jury,  not 
showing  broker's  employment. 

In  a  suit  in  which  plaintiff  claimed  a  commission  for  effecting 
a  sale  of  oil  and  gas  properties,  evidence  held  insufficient  to  carry 
case  to  jury,  not  showing  plaintiff's  employment  or  defendant's 
agreement  to  make  payments.  Levering  v.  Paova  Oil  Co.,  243  F. 
553,  156  C.  C.  A.  251. 

Sec.  911.    Whether  failure  to  consummate  sale  was  the  fault 
of  the  principal. 

In  an  action  by  a  broker  for  his  commissions  for  securing  a 
purchaser,  evidence  examined  and  held  sufficient  to  take  to  the 
jury  the  question  whether  the  failure  of  the  consummation  of  the 
sale  was  owing  to  the  default  of  the  principal.  Seidman  v.  Ran- 
ner,  99  N.  Y.  S.  862,  51  Misc.  10 ;  Ingalls  v.  Smith,  145  P.  846, 
93  Kan.  814;  Knight  v.  Brown,  147  N.  Y.  Sup.  628,  162  App. 
Div.  438. 


PLEADINGS,  PHACTICE,  ETC.  755 

Sec.  912.    Whether  the  sub-agent  concealed  his  relation  from 

the  owner. 

In  an  action  by  a  real  estate  agent  for  commissions,  the 
owner  testified  that  when  the  agent's  sub-agent  introduced  a 
purchaser,  the  latter  stated  he  wished  to  deal  direct  with  the 
owner,  who  then  stated  a  less  price  than  fixed  in  the  contract 
of  employment;  the  owner  testified  that  the  sub-agent  and  the 
purchaser  stated  that  they  had  made  no  arrangement  with  the 
agent;  that  the  sub-agent  stated  nothing  about  commissions  to 
the  agent;  and  that  he  (the  owner)  told  the  purchaser  and 
sub-agent  that,  if  the  agent  had  sold  the  land,  he  would  have 
to  let  it  go;  the  sub-agent  testified  that  he  asked  the  owner 
if  the  latter  would  not  have  trouble  with  the  agent  about  the 
commissions,  to  which  the  owner  replied  that  he  would  not,  as 
he  was  selling  the  farm ;  the  sub-agent  testified  that  he  told 
the  owner  he  did  not  charge  any  commission,  as  he  would  get 
that  from  the  agent;  the  purchaser  substantiated  the  sub-agent's 
testimony;  there  was  no  evidence  to  show  that  the  owner  knew 
that  the  sub-agent  was  acting  for  the  agent.  Held,  that  the 
question  whether  the  sub-agent  concealed  such  fact  from  the 
owner  should  have  been  submitted  to  the  jury.  Mullen  v.  Bower, 
22  Ind.  App.  294,  53  N.  E.  790. 

Sec.  912a.    Whether  the  broker  was  acting  for  opposite  party 

a  question  for  the  jury. 

The  issue  as  to  whether  the  broker  was  acting  for  the  op- 
posite party  should  be  submitted  to  the  jury.  Summa  v.  Dere- 
skiawicz  (Conn.  Sup.  '09),  74  A.  906;  Crawford  v.  Surety  Inv. 
Co.,  139  P.  481,  91  Kan.  748;  Goldsberry  v.  Thomas,  165  S.  W. 
1179,  178  Mo.  App.  334;  Pulver  v.  Ainsworth,  205  111.  App.  81. 

Sec.  913.    Whether  actual  negligence  of  broker  prevented  a 
sale. 

In  an  action  to  recover  commissions  for  a  sale  of  land,  where 
the  evidence  shows  that  the  intended  purchaser  was  able,  ready 
and  willing  to  perform,  but  defendant  claims  that  plaintiff 
prevented  the  fulfillment  of  the  agreement  by  defendant  within 
the  time  specified  in  the  contract,  the  question  whether  the 
negligence  of  plaintiff  was  the  cause  of  defendant's  failure  to 


756  AMEBICAN  LAW   REAL  ESTATE   AGENCY. 

perform  is  for  the  jury.    Stauff  v.  Bingenheimer,  94  Minn.  309, 
102  N.  W.  694.     See  also  Sec.  899. 

Sec.  914.    Whether  broker  knew  of  minor's  interest  which 

caused  failure  of  sale. 

In  a  suit  between  a  broker  and  his  principal  involving  the 
broker's  right  to  a  commission,  whether  the  broker  had  knowl- 
edge of  the  minor's  interest,  which  caused  the  failure  of  the 
sale,  before  he  obtained  a  purchaser.  Held,  a  question  of  fact 
for  the  jury.  O'Neill  v.  Printz,  115  Mo.  App.  215,  91  S.  W.  174. 

Sec.  915.    Whether  broker  acted  in  good  faith  a  question  for 
the  jury. 

In  an  action  by  a  broker  for  commissions  for  selling  defend- 
ant's real  estate.  Held,  that  whether  the  plaintiff  was  acting 
in  good  faith  for  defendant's  interest  was  a  question  for  the 
jury.  Roome  v.  Robinson,  90  N.  Y.  S.  1055,  99  App.  Div.  143 ; 
Lichtenstein  v.  Mott,  91  N.  Y.  S.  57,  90  App.  Div.  570 ;  Lienwen 
v.  Kline  (Iowa  '09),  120  N.  W.  312;  L'Ecluse  v.  Field,  139  N.  Y. 
Sup.  383,  154  App.  Div.  685;  T.  A.  Hill  &  Son  v.  Patton  & 
Schwartz,  160  S.  W.  1155,  —  Tex.  Civ.  App.  — ;  Heath  v.  Chown- 
ing,  142  P.  1108,  23  Okl.  274;  Paschall  &  Gresham  v.  Gillies,  75 
S.  E.  220,  113  Va.  643,  Ann.  Gas.  1913  E,  778;  Thomas  v.  Mohn, 
193  S.  W.  924,  —  Mo.  App.  — ;  Speer  v.  Dalrymple,  222  S.  W. 
174,  —  Tex.  Civ.  App.  — . 

Sec.  916.    The  terms  of  the  agreement  with  the  broker  to  pro- 
cure a  loan. 

In  an  action  for  commissions  for  securing  a  loan,  where  the 
evidence  for  plaintiff,  though  contradicted  by  defendant,  tends 
to  show  an  agreement  to  pay  one  per  cent,  on  the  amount  of 
the  loan  to  be  secured  by  plaintiff,  the  question  as  to  such 
agreement  is  for  the  jury.  Carter  v.  Moss,  210  Pa.  612,  60  A. 
310. 

Sec.  917.    Where  sale  was  made  to  customer  after  withdrawal 

from  broker,  it  was  error  to  submit  to  jury. 
In  an  action  for  commissions  on  a  sale  of  real  property,  it 
appeared  that  the  purchaser  had  been  informed  that  defend- 


PLEADINGS,  PRACTICE,  ETC.  757 

anfs  property  was  for  sale,  and  had  written  defendant,  before 
he  met  plaintiff  or  saw  his  advertisement;  that  the  letter  was 
referred  to  plaintiff  with  whom  the  property  was  listed  and  he 
and  the  purchaser  examined  the  property  and  had  some  con- 
versation about  it,  but  agreed  on  nothing;  that  defendant  then 
wrote  plaintiff,  "I  desire  to  withdraw  my  property  from  the 
market  for  a  period;  I  do  not  know  yet  how  long;"  that  plain- 
tiff had  never  been  authorized  to  sell  the  property  for  less 
than  $5,400  net;  that  the  purchaser  conferred  with  defendant 
afterwards  and  bought  it  for  $5,250.  Held,  that  the  evidence 
did  not  entitle  plaintiff  to  go  to  the  jury.  Malonee  v.  Young, 
119  N.  C.  549,  26  S.  E.  141.  Compare  Hill  v.  Wheeler,  2  Ga. 
App.  349,  58  S.  E.  502.  Sec.  921. 

Sec.  918.    Where  defendant  promised  plaintiff  additional  com- 
pensation if  found  satisfactory. 

In  a  suit  to  recover  the  reasonable  value  of  services  in  ef- 
fecting an  exchange  of  real  estate,  when  the  defendant  set  up 
that  plaintiff  had  agreed  to  accept  $500  for  his  services,  but 
there  was  evidence  tending  to  show  that  as  an  inducement  for 
such  agreement,  defendant  promised  to  pay  plaintiff  a  further 
reasonable  commission  if  he  found  the  land  satisfactory,  it  was 
proper  to  submit  such  issue  to  the  jury.  Blair  v.  Slosson,  27 
Tex.  Civ.  App.  403,  66  S.  W.  112. 

Sec.  919.    Whether  time  for  performance  has  been  waived  or 

contract  continued. 

Whether  there  is  evidence  that  the  time  given  a  real  estate 
broker  to  procure  a  purchaser  has  been  waived,  or  the  contract 
has  been  continued,  is  for  the  jury.  Ice  v.  Maxwell,  61  W.  Va. 
9,  55  S.  E.  899;  Arents  v.  Casselman  (Va.  Sup.  '10),  66  S. 
E.  820;  Weisells-Gerhart  R.  E.  Co.  v.  Epstein,  137  S.  W.  326,  157 
Mo.  App.  101 ;  Smith  v.  Sharp  R.  E.  Co.,  77  S.  40,  200  Ala.  666. 

Sec.  920.    Whether  plaintiff  attempted  to  mislead  defendant. 

In  an  action  to  recover  a  commission  for  services  in  bring- 
ing about  an  exchange  of  land.  Held,  whether  plaintiff  at- 
tempted to  mislead  defendant  upon  a  material  matter  con- 


758  AMERICAN   LAW    JIEAL   ESTATE   AGENCY. 

nected  with  the  transaction  was  for  the  jury.  Featherston  v. 
Trone,  82  Ark.  381,  102  S.  W.  196;  Farris  v.  Gilder  (Tex.  Civ. 
App.  '09),  115  S.  W.  645. 

Sec.  920a.    Question  as  to  whether  defendant's  defense  was 

an  afterthought  was  for  the  jury. 

Where,  in  an  action  by  an  assignee  of  a  contract  for  the 
sale  of  land,  made  through  a  broker,  against  the  principal  for 
breach  of  the  contract,  the  defense  was  that  the  contract  had 
been  procured  through  misrepresentations,  the  question  as  to  how 
far  a  delay  of  a  few  weeks  on  defendant's  part  in  retaining 
the  purchase  money,  and  her  reading  of  the  whole  or  part  only 
of  the  paper  before  signing  it,  tended  to  show  her  defense  to 
be  an  afterthought,  were  for  the  jury.  Kurinsky  v.  Lynch,  201 
Mass.  28,  87  N.  E.  70. 

Sec.  921.    Whether  the  owner  acted  in  good  faith  in  himself 
selling  the  property. 

On  the  trial  of  an  action  by  real  estate  agents  for  commis- 
sions on  a  sale  of  property,  it  was  error  to  award  a  non-suit, 
where  the  evidence  showed  that  plaintiffs  had  defendant's  prop- 
erty in  their  hands  to  sell  on  specific  terms,  and  that,  pend- 
ing negotiations  between  the  agents  and  their  customers,  they 
were  prevented  from  selling  by  the  act  of  their  principal  in 
taking  the  matter  into  his  own  hands,  and,  without  notice,  sell- 
ing the  property  at  a  lower  price  to  a  customer  procured  by 
their  efforts,  as,  in  such  case,  the  good  faith  of  the  parties,  as 
well  as  whether  the  purchaser  would  have  given  the  stipulated 
price,  are  questions  of  fact  for  the  jury.  Hill  v.  Wheeler,  2 
Ga.  349,  58  S.  E.  502;  Bradly  v.  Blandin,  100  A.  920,  91  Vt. 
472;  Kirby  Lumber  Co.  v.  West,  220  S.  W.  639,  —  Tex.  Civ. 
App.  — .  Compare  Sec.  917. 

Sec.  922.    Whether  a  limitation  of  time  was  placed  upon  the 
contract. 

An  owner  agreed  to  pay  a  broker  a  specific  commission  on  his 
procuring  a  purchaser  of  real  estate;  at  a  subsequent  interview 


PLEADINGS,  PRACTICE,  ETC.  759 

on  the  same  day,  when  the  prospective  purchaser  was  urged  to 
conclude  the  purchase  he  insisted  on  having  more  time ;  the  owner 
claiming  that  he  expected  another  purchaser,  said  he  would  give 
the  prospective  purchaser  a  week's  time  within  which  to  make  up 
his  mind.  Held,  that  whether  the  owner  placed  a  limitation  on 
the  contract  with  the  broker  to  procure  a  purchaser  was  for  the 
jury.  Oliver  v.  Katz,  131  Wis.  409,  111  1ST.  W.  509;  Shortridge 
v.  Raiffreian,  222  S.  W.  1031,  —  Mo.  App.  — . 

Sec.  922a.    Question  as  to  authority  of  agent  is  for  the  jury. 

While  the  question  of  the  authority  of  an  agent  is  for  the 
jury,  when  that  is  disputed,  the  court  should  declare  whether 
a  given  act  is  in  excess  of  the  agenfs  authority,  so  that,  in 
an  action  for  commissions  for  purchasing  land  for  defendant, 
the  court  properly  instructed  that  any  payments  made  by  plain- 
tiff to  sellers,  in  excess  of  the  amount  limited  by  defendant,  was 
without  authority.  Mahon  v.  RanJcin  (Or.  Sup.  '09),  102  P. 
608;  Lamer  v.  Harve,  155  N.  W.  427,  189  Mich.  249;  McKinney 
v.  Thedford,  166  S.  W.  443,  —  Tex.  Civ.  App.  — ;  Gilliland  v. 
Ellison,  137  S.  W.  168,  —  Tex.  Civ.  App.  — .  Compare  Sec. 
695a. 

Sec.  923.    Whether  negotiations  were  abandoned  and  sale  re- 
sulted from  new. 

Evidence  held  sufficient  to  warrant  submitting  to  the  jury  the 
question  whether  the  negotiations  through  plaintiff  were  aban- 
doned and  the  sale  ultimately  made  to  the  purchaser  introduced 
by  him  was  the  result  of  entirely  new  negotiations.  Walker  v. 
Baldwin,  106  Md.  619,  68  A.  25. 

Sec.  924.    Whether  the  contract  with  broker  was  rescinded. 

In  an  action  to  recover  compensation  under  a  contract  for 
commissions  to  be  paid  plaintiff  for  selling  defendant's  land, 
whether  or  not  the  contract  was  mutually  rescinded  was  for  the 
jury.  Larson  v.  Lorer  (Wash.  Sup.  '08),  94  P.  109;  Hutto  v. 
Stough  &  Hornsby,  47  S.  1031,  157  Ala.  566. 


760  AMEKICAN  LAW  BEAL  ESTATE  AGENCY. 

Sec.  925.    Whether  defendant  purchased  the  property,  though 

the  deed  was  taken  in  name  of  wife. 

Evidence  that  defendant  purchased  the  land  and  so  was  lia- 
ble for  the  services  of  plaintiff,  to  be  paid  for  if  defendant 
made  the  purchase.  Held,  sufficient  to  go  to  the  jury,  though 
the  contract  of  purchase  and  the  deed  were  taken  in  the  name 
of  defendant's  wife.  Block  v.  Lowe,  99  N.  Y.  S.  951,  51  Misc.  8. 

Sec.  925a.    Evidence  warranted  submission  to  jury  on  ques- 
tion whether  plaintiff  was  a  joint  purchaser. 
In  an  action  by  a  land  broker  for  commissions,  evidence  held 
to  warrant  submission  to  the  jury  whether  plaintiff  was  a  joint 
purchaser.    Smith  v.  Fears  (Tex.  C.  A.  '09),  122  S.  W.  433. 

Sec.  926.    What  is  a  reasonable  time  to  find  a  purchaser. 

A  broker  employed  by  the  owner  to  find  a  purchaser  with- 
out any  specification  of  time,  has  a  reasonable  time,  which  is 
for  the  jury  to  determine.  Hurst  v.  Williams,  31  Ky.  L.  R. 
658,  102  S.  W.  1176 ;  Oliver  v.  Katz,  131  Wis.  409,  111  N.  W. 
509.  See  also  Sees.  611,  612.  . 

Sec.  927.    Whether  compensation  for  collecting  rents  covered 
all  of  broker's  services. 

Where,  in  an  action  for  the  services  of  a  real  estate  agent 
in  procuring  defendant  a  tenant  for  her  hotel,  plaintiff  claimed 
that  his  services  were  reasonably  worth  five  per  cent,  of  the  rent 
for  the  term,  evidence  that  defendant  paid  plaintiff  five  per  cent, 
on  the  installments  of  rent  was  sufficient  to  require  the  sub- 
mission to  the  jury  of  the  question  whether  the  same  was  paid 
in  full  compensation  for  plaintiff's  services,  or  a  recognition 
that  plaintiff  was  entitled  to  five  per  cent,  of  all  the  rents  col- 
lected. Colloty  v.  Schuman,  70  A.  190,  75  N.  J.  L.  97. 

Sec.  928.    Whether  an  owner  dealing  with  a  customer  of  an- 
other broker  became  liable  to  latter. 

Whether  an  owner  employing  several  brokers  to  procure  a 
purchaser  dealt  with  knowledge  of  the  facts  through  one  bro- 


PLEADINGS,  PEACTICE,  ETC.  761 

ker  with  a  customer  procured  by  another  broker,  and  thereby 
became  liable  to  the  latter  for  the  commissions.  Held,  under 
the  facts,  for  the  jury.  Jennings  v.  Trummer,  52  Oregon,  149, 
96  P.  874. 

Sec.  929.    Whether  the  person  with  whom  the  owner  con- 
tracted was  an  agent  of  the  broker. 

In  an  action  for  commissions  for  procuring  a  purchaser  for 
land  pursuant  to  a  contract  between  the  alleged  agent  of  the 
broker  and  the  owner  of  the  land,  whether  the  person  with 
whom  the  owner  contracted  was  the  agent  of  the  brokers  for 
listing  the  land  in  question.  Held,  under  the  evidence,  a  ques- 
tion for  the  jury.  Ewing  v.  Lunn  (S.  D.  Sup.  '08),  115  N.  W. 
527. 

Sec.  929a.    Improper  to  submit  a  question  of  law  to  the  jury. 

Questions  of  ultimate  fact  only  are  to  be  submitted  to  the 
jury;  the  question  under  consideration  is  double.  Whether  a 
contract  was  entered  into  between  the  plaintiff  and  defendant 
is  a  mixed  question  of  law  and  fact,  and  questions  of  law 
should  never  be  submitted  to  a  jury.  Eilpatrick  v.  McLaughUn, 
108  111.  App.  463. 
Sec.  929b.  Meeting  of  minds  on  contract  of  sale. 

Plaintiff,  after  negotiating  for  sale  to  S.  of  timber  land,  on 
which  defendant  had  an  option,  in  which  S.'s  only  offer  was 
$90,000  for  such  timber  and  that  of  certain  other  adjoining 
tracts,  which  offer  defendant  rejected,  had  a  telephone  talk 
with  defendant,  in  which  he  said  that  he  thought  S.  would  give 
$90,000  for  the  timber  under  option,  and  defendant  told  him 
to  sell  if  S.  would  do  so.  Plaintiff  agreed  to  see  S.,  and  report 
to  defendant  by  telephone.  Later  in  the  day  plaintiff  tele- 
graphed defendant:  "S.  will  give  $90,000  for  timber,  includ- 
ing the  additional  tracts  *  *  *  can't  raise  him  a  penny." 
Defendant  then  telegraphed  plaintiff:  "We  accept  S.'s  offer; 
if  he  declines  to  stand  up,  we  can  do  no  more  business  with 
him."  Held,  that  there  was  evidence  to  go  to  the  jury  that 
defendant's  telegram  was  in  reply  to  plaintiff's  telegram,  and 


762  AMEBICAN  LAW  HEAL  ESTATE  AGENCY. 

not  to  the  telephone  offer,  and  that  therefore  there  was  a  meet- 
ing of  minds  on  the  contract  entitling  plaintiff  to  commissions. 
Watson  v.  Paschall,  83  S.  C.  366,  65  S.  E.  337.  See  also  Sec.  33. 
Under  a  contract  by  which  broker  was  employed  to  procure  a 
third  party  to  undertake  the  sale  of  a  large  tract  of  land  to  nu- 
merous purchasers;  held,  there  could  be  no  recovery,  where  no 
contract  with  a  third  party  was  ever  made,  even  if  their  minds 
did  meet  on  the  terms  of  a  contract.  Jameson  v.  U.  S.  Farm 
Loan  Co.,  210  F.  885,  127  C.  C.  A.  495,  den.  re.,  206  F.  889,  124 
C.  C.  A.  549. 

Sec.  929c.    Questions  determinable  by  juries. 

(1)  In  a  broker's  action  for  commission  on  sale  which  was  not 
completed,  whether  there  was  an  agreement  as  to  the  payment  of 
a  commission;  held,  a  question  for  the  jury.    Worthen  v.  Stewart, 
172  S.  W.  855,  116  Ark.  294. 

(2)  In  an  action  for  commission,  evidence  held  sufficient  to 
go  to  the  jury,  on  the  question  whether  a  contract  was  made  prior 
or  subsequent  to  obtaining  a  license.    Van  Gilder  v.  Kamper,  192 
111.  App.  25. 

(3)  In  an  action  by  a  real  estate  broker  to  recover  commission 
which  he  claimed  was  due  him  in  furthering  a  sale,  evidence  held 
insufficient  to  go  to  the  jury.    Hall  v.  Ware,  148  S.  W.  1197,  — 
Tex.  Civ.  App.  — . 

(4)  In  an  action  against  a  married  woman  and  her  husband 
to  recover  commission  for  producing  a  purchaser  for  her  land, 
evidence  held  sufficient  to  carry  to  the  jury  the  question  whether 
the  woman  authorized  the  sale.     Bailey  v.  Padgett,  70  S.  637, 
195  Ala.  203. 

(5)  Evidence  held  to  make  out  a  jury  question,  whether  de- 
fendant, in  making  contract  with  plaintiff,  acted  for  himself,  or 
for  an  agent  of  his  company,  or  for  a  certain  railroad  company. 
Myers  v.  Kilgen,  160  S.  W.  569,  177  Mo.  App.  724. 

(6)  Evidence  held  to  authorize  submitting  issue,  whether  bro- 
ker abandoned  his  contract  before  any  sales  were  made.    Elser  v. 
Putnam  Land  &  Dev.  Go.,  171  S.  W.  1052,  re.  den.,  Id.  1200,  — 
Tex.  Civ.  App.  — . 

(7)  Whether  a  broker  employed  to  find  a  specific  property  for 
an  intending  purchaser  brought  about  a  purchase  of  property  dis- 


PLEADINGS,  PRACTICE,  ETC.  763 

closed  by  him;  held,  under  the  evidence,  for  the  jury.  Murphy  v. 
Knights  of  Columbus  Building  Co.,  135  S.  W.  446,  155  Mo.  App. 
649. 

(8)  Evidence  held  to  require  submission  to  a  jury,  of  the  ques- 
tion whether  the  broker  .had  performed  his  contract  within  a  rea- 
sonable time.    Tull  v.  Starmer,  176  S.  W.  511,  188  Mo.  App.  713. 

(9)  In  a  suit  for  commissions  for  an  alleged  sale  of  certain 
lots,  where  the  alleged  contract  of  sale  consists  of  letters,  tele- 
grams, and  telephonic  conversations,  the  material  question  is,  as 
to  whether  there  was  a  meeting  of  the  minds  of  the  parties  on 
the  terms  of  the  proposed  sale,  but  there  was  a  conflict  in  the  evi- 
dence as  to  the  conversations,  the  question  was  for  the  jury.   Cul- 
oertson  v.  Mann,  120  P.  918,  30  Okl.  249. 

(10)  In  an  action  by  a  broker  for  compensation,  the  question 
whether  the  seller  misrepresented  his  title,  and  was  unable  to  de- 
liver the  property  free  from  undisclosed  incumbrances ;  held,  for 
the  jury.    Lord  v.  Crane,  138  N.  Y.  Sup.  383,  78  Misc.  Eep.  389. 

(11)  Evidence  held  to  present  question  for  jury,  whether  note 
given  by  principal  to  broker  was  in  extinguishment  of  commis- 
sion liability,  or  as  mere  evidence  thereof.    Harnwell  v.  J.  D.  Ar- 
nold &  Co.,  193  S.  W.  506,  —  Ark.  Sup.  — . 

(12)  Whether  defendant  told  plaintiff  broker  that  he  could  not 
secure  his  wife's  signature  to  a  conveyance,  is  a  jury  question  in 
plaintiff  broker's  action  for  commission,  where  the  defendant  tes- 
tified he  made  such  statement,  and  the  broker  denied  it.    Cain  v. 
Masuretta,  162  K  W.  287,  196  Mich.  464. 

(13)  In  broker's  action  for  commission,  whether  written  agree- 
ment between  the  parties  had  been  given  up  by  plaintiff  so  as  to 
render  it  of  no  effect ;  held,  for  the  jury.    Freeman  v.  Van  Wage- 
man,  101  A.  55,  —  N.  J.  — . 

(14)  In  suit  for  commission,  whether  agent  disclosed  the  name 
of  alleged  purchaser  to  owner  of  land;  held,  under  the  evidence, 
for  the  jury.    Coppage  v.  Howard,  103  A.  439,  132  Md.  233. 

(15)  In  an  action  for  a  commission  for  negotiating  a  resale  of 
land  based  on  a  written  contract ;  held,  that  the  question  of  duress 
was  for  the  jury.    Snyder  v.  Samuelson,  167  N".  W.  287,  —  Minn. 
Sup.  — . 

(16)  Whether   plaintiff,   suing  for  broker's   commission,   sus- 
tained the  burden  of  proving  that  he  had  put  and  kept  in  force 


764  AMERICAN   LAW   EEAL   ESTATE   AGENCY. 

defendant's  exclusive  brokers'  contract,  by  making  an  effort  to 
sell  defendant's  real  property,  was  a  question  for  the  jury.  How- 
ard &  Brown  Realty  Co.  v.  Barnett,  206  S.  W.  417,  —  Mo. 
App.  — . 

(17)  In  real  estate  broker's  action  for  commission  for  finding 
lessee,  .evidence  held  to  sustain  submission  to  a  jury  of  question, 
whether  the  minds  of  owner  and  procured  lessee  met  upon  a  lease, 
and  whether  owner's  refusal  to  execute  lease  was  a  breach.    Good- 
Jcind  v.  0.  L.  8.  Realty  Corp.,  173  N.  Y.  Sup.  482. 

(18)  In  broker's  action  on  commission  notes  and  to  foreclose 
lien  reserved  in  the  deed,  where  broker's  lien  is  shown  by  facts 
pleaded  was  inferior  to  vendors'  lien  for  purchase  price,  vendors 
were  entitled  to  show  they  had  a  lien  superior  to  that  of  broker, 
and  to  have  jury  pass  on  such  issue.    Speer  v.  Dalrymple,  222  S. 
;W.  174;  —  Tex.  Civ.  App.  — . 

(19)  In  an  action  for  commission  on  loan  and  abstract  made 
by  defendant,  case  held  for  jury  under  evidence  making  a  prima 
facie  case  for  plaintiff,  and  evidence  tending  to  impeach  him  as  a 
witness.    Crain  v.  McKinley,  222  S.  W.  495,  —  Mo.  App.  — . 

(20)  In  a  realty  broker's  action  for  a  sale  commission,  whether 
either  or  both  of  two  conditions,  that  he  must  sell  to  some  one 
other  than  the  actual  purchaser  and  that  he  must  sell  for  $9,500, 
were  a  part  of  the  contract;  held,  for  the  jury.     Shortridge  v. 
'Raiffeisen,  222  S.  W.  1031,  —  Mo.  App.  — . 

(21)  In  a  broker's  action  for  commission  for  producing  a  pur- 
chaser'ready,  able  and  willing  to  buy  land,  where  the  broker  had 
leased  the  land  for  defendant  owner,  with  knowledge  of  condi- 
tions of  lease,  and  there  was  conflicting  evidence  on  the  issue, 
whether  plaintiff  had  received  assurances  over  the  telephone  from 
defendant  that  immediate  possession  could  be  given,  as  required 
by  purchaser,  notwithstanding  the  lease,  that  question  was  a  mate- 
rial issue  of  fact  for  the  jury.     Cohogen  v.  Big  Bend  Land  Co., 
186  P.  1070,  —  Wash.  Sup.  — . 

(22)  In  a  broker's  action  for  commission  against  owner  who, 
instead  of  selling  the  land  to  procured  purchaser,  had  sold  it  to 
third  party  who,  in  turn,  sold  it  to  such  procured  purchaser,  evi- 
dence held  insufficient  to  warrant  submission  to  jury,  the  question 
whether  owner  fraudulently  sold  land  to  third  party  as  blind  to 


PLEADINGS,  PEACTICB,  ETC.  765 

deprive  broker  of  commission.    Lorton  v.  True,  216  S.  W.  54,  — 
Mo.  App.  — . 

Sec.  929d.    Questions  of  law  for  the  Court. 

Whether  a  contract  between  the  owner  of  land  and  a  principal 
made  the  payment  of  a  commission  to  the  agent  contingent  on 
the  purchaser  making  the  payments  provided  for  by  the  contract, 
was  a  question  of  law  for  the  court.  Gransbury  v.  Saterbok,  133 
N.  W.  851,  116  Minn.  339. 

In  an  action  by  a  real  estate  broker  for  compensation,  where 
his  recovery  depends  wholly  on  correspondence  with  the  owner, 
it  is  the  province  of  the  court  to  determine  the  legal  effect  of  the 
letters.  Bond  v.  Eumbird,  85  A.  943,  118  Md.  650. 

Construction  of  letters  written  by  certain  heirs  to  their  attor- 
ney, authorizing  him  to  sell  certain  real  property;  held,  for  the 
Court.  Martin  v.  Crumb,  142  N.  Y.  Sup.  1096,  158  App.  Div. 
228;  rear,  and  app.  to  Ct.  App.  den.,  143  N.  Y.  Sup.  1130,  158 
App.  Div.  939,  and  judg.  rev.,  Ill  N.  E.  62,  216  1ST.  Y.  500. 

In  an  action  by  a  broker  who  was  to  receive  his  commissions 
from  the  vendors,  against  a  purchaser  for  breach  of  his  agreement 
not  to  purchase  through  another;  evidence  held  not  to  show,  as 
a  matter  of  law,  that  the  broker  did  not  exercise  good  faith 
toward  the  purchaser.  Foss  v.  2V.  Y.  Gen.  &  H.  B.  R.  Co.,  146 
N.  Y.  Sup.  930,  161  App.  Div.  681,  judg.  aff.,  112  N.  E.  1059, 
217  N.  Y.  727. 

Where,  though  one  count  in  petition  for  broker's  commission 
raised  the  issue  of  quantum  meruit,  the  only  evidence  of  reason- 
able value  was  received  over  plaintiff's  objection  for  a  limited 
purpose,  failure  to  submit  such  issue ;  held,  not  error.  B.  F.  Loos 
Co.  v.  Herr,  166  N.  W.  637,  —  Iowa  Sup.  — . 


CHAPTER  XVI. 
INSTRUCTIONS  TO  JURIES. 

Sec.  930.    Instructions  must  not  assume  as  proved,  matters 

which  are  in  issue. 

Instructions  must  not  assume  as  proved,  matters  which  are  in 
issue  in  the  case.  Swigert  v.  Hawley,  140  111.  186,  29  N.  E. 
883 ;  Cassady  v.  Carrahan,  119  Iowa,  500,  93  N.  W.  386 ;  Rich- 
ardson v.  Hoyt,  60  Iowa,  68,  14  N.  W.  122;  Benedict  v.  Pell, 
74  N.  Y.  S.  1085,  70  App.  Div.  40;  Gerding  v.  Haskin,  21  N.  Y. 
S.  636,  2  Misc.  172;  Graves  v.  Dill  159  Miss.  74,  34  N.  E.  336; 
Jester  v.  Lee,  200  111.  App.  183. 

Sec.  931.    That  defendant  was  liable  where  compensation  for 
services  was  expected. 

It  was  proper  to  instruct  the  jury  that  defendants  were  lia- 
ble for  the  value  of  plaintiff's  services,  if  they  were  of  such 
a  character  and  rendered  under  such  circumstances  as  would 
indicate  to  a  reasonably  intelligent  business  man  that  they  were 
not  performed  gratuitously,  and  that  compensation  was  ex- 
pected, the  instruction  not  assuming  that  plaintiff  had  ren- 
dered all  the  services  for  which  he  asked  compensation.  Miller 
v.  Early,  22  Ky.  L.  R.  825,  58  S.  W.  789.  See  also  Sec.  956a. 

Sec.  932.    Instructions  must  conform  to  the  evidence  in  the 
case. 

Instructions  must  be  in  conformity  with  the  evidence  ad- 
duced in  the  case,  and  instructions  which  impliedly  assume  the 
existence  of  evidence  which  was  not  given  are  erroneous.  Leech 
v.  demons,  14  Colo.  App.  45,  59  P.  230;  Davis  v.  Morgan,  96 
Ga.  518,  23  S.  E.  417 ;  Games  v.  Howard,  180  Mass.  569,  63  N. 
E.  122;  Cadigan  v.  Crabtree,  179  Mass.  474,  61  N.  E.  37,  55  L. 
R.  A.  77 ;  Hughes  v.  McCullough,  39  Ore.  372,  65  P.  85 ;  Taylor 
V.  Cox  (Tex.  Supreme  '91),  16  S.  W.  1063;  Lawson  v.  Thomp- 
766 


PLEADINGS,  PRACTICE,  ETC.  767 

sow,  10  Utah,  462,  37  P.  732.  Instruction  not  objectionable  as 
submitting  an  issue  not  pleaded.  Baldwin  v.  Smith  (Tex.  Civ. 
App.  '09),  119  S.  W.  111. 

Sec.  933.    Defendant  sued  by  broker  entitled  to  instruction 

which  assumes  he  acted  as  such. 

A  defendant  sued  by  a  broker  for  commissions  is  entitled  to 
an  instruction  which  assumes  plaintiff  to  have  acted  as  broker, 
where  the  declaration  alleged  that  defendant  agreed  to  pay 
plaintiff  a  fixed  sum  if  plaintiff,  as  a  ''broker,"  would  secure 
a  sale  to  defendant,  and  plaintiff  testified  that  he  acted  as  a 
broker.  Carpenter  v.  Fisher,  175  Mass.  9,  55  N.  E.  479. 

Sec.  934.  An  instruction  should  be  given,  on  request,  that 
broker  must  have  been  the  procuring  cause  of  sale. 

An  instruction  that  the  broker  must  have  been  the  procuring, 
cause  of  the  sale,  in  order  to  entitle  him  to  a  commission,  should 
be  given  on  request,  where  that  point  is  in  issue.  Hinds  v.  Mc- 
Intyre,  89  111.  App.  611;  Munson  v.  Carlstrom  (Iowa  Sup.  '09), 
119  N.  W.  606.  Sec.  446. 

Sec.  934a.  Error  to  charge  under  contract  involved  that  if 
plaintiff  was  procuring  cause  of  sale  he  was  entitled  to 
recover  commissions. 

A  broker  sued  to  recover  commissions  for  selling  defendant's 
real  estate,  and  testified  that  during  defendant's  absence  he 
exhibited  the  premises  to  one  who,  after  defendant's  return, 
purchased  for  $2,700;  defendant  testified  that  it  was  agreed 
that  the  broker  was  to  receive  no  commission  unless  he  sold 
for  $3,000  during  defendant's  absence.  Held,  that  it  was  error, 
under  the  evidence,  to  charge  that  if  the  plaintiff  was  the  pro- 
curing cause  of  the  sale  he  was  entitled  to  recover.  Largeant 
v.  Story  (Tex.  Civ.  App.  '01),  61  S.  W.  977. 

Sec.  934b.    Instructions  erroneous  for  omitting  that  plaintiff 

should  be  found  to  be  the  procuring  cause  of  the  sale. 
Real  estate  brokers,  in  their  complaint  for  compensation, 
alleged  that  defendant   gave  them  the   exclusive   agency  to 
sell  a  certain  tract  of  land,  their  compensation  to  be  a  percent- 
age on  the  price  obtained,  and  that  they  procured  a  purchaser 


768  AMERICAN  LAW   REAL  ESTATE  AGENCY. 

to  whom  defendant  sold.  Defendant  pleaded  a  general  denial, 
and  especially,  that  plaintiffs'  agency,  if  any,  was  revoked  be- 
fore they  began  to  negotiate  with  the  purchaser.  Held,  that 
an  instruction  that  if  plaintiffs  had  an  exclusive  agency  when 
they  began  to  negotiate  with  the  purchaser,  they  were  entitled 
to  recover,  was  erroneous,  as  not  including  the  necessity  that 
they  should  have  been  the  procuring  cause  of  the  sale,  thereby 
failing  to  conform  to  the  issues  made,  and  even  had  plaintiffs 
alleged  that  defendant,  by  his  sale,  had  prevented  plaintiffs 
from  consummating  their  sale,  the  omission  would  still  have 
been  fatal  to  the  instruction.  Jackson  v.  Stephenson  (Tex.  Civ. 
App.  '08),  114  S.  W.  848;  Eussell  v.  Poor  (Mo.  App.  '08),  119 
S.  W.  433. 

Sec.  935.    Instruction  that  broker  should  bring  buyer  and  sell- 
er together  and  effect  a  purchase. 

Where  no  other  instruction  defining  a  broker's  duty  is  given, 
it  is  error  to  refuse  an  instruction  that  the  duty  of  a  broker  is 
to  bring  the  buyer  and  seller  together  and  effect  a  purchase 
of  the  property  according  to  the  terms  agreed  on  by  the  seller 
and  the  broker,  and  that  the  latter  is  not  entitled  to  a  com- 
mission for  an  unsuccessful  effort  to  effect  a  sale.  West  v. 
Demme,  128  Mich.  11,  87  N.  W.  95.  Compare  Sec.  509. 

Sec.  936.    Where  instructions  cover  case  generally,  failure  as 
to  particular  detail  not  error. 

If  the  instructions  cover  the  case  generally,  the  failure  to 
instruct  concerning  particular  details  is  not  error,  in  the  ab- 
sence of  a  request  to  specifically  charge  on  that  point.  Bickart 
v.  Hoffman,  19  N.  Y.  S.  472;  Keyser  v.  EeiUy,  191  Pa.  St.  271, 
43  A.  317,  4*  Weekly  Not.  Cas.  240. 

Sec.  937.    Court  not  bound  to  use  the  identical  language,  if 

substantially  the  same  it  is  sufficient. 

The  court  is  not  required  to  use  the  same  language  in  which 
the  charge  offered  is  expressed ;  it  is  sufficient  if  the  instruction 
given  is  essentially  similar  to  that  requested.  Walker  v.  Rogers, 
24  Md.  237. 


PLEADINGS,  PRACTICE,  ETC.  769 

Sec.  938.    Employing  the  word  "furnished"  instead  of  "pro- 
cured" not  a  departure. 

Where  defendant  agreed  to  pay  commissions  for  sales  of  land 
to  customers  "procured"  by  plaintiff,  an  instruction  that  de- 
fendants were  liable  if  plaintiffs  "furnished"  customers,  is  not 
a  departure  from  the  issues  made.  Boyd  v.  Watson,  101  Iowa* 
214,  70  N.  W.  120. 

Sec.  939.    Where  evidence  on  given  fact  is  undisputed,  the 
court  should  so  instruct. 

Where  the  evidence  on  a  given  fact  is  undisputed  the  court 
should  so  instruct  the  jury.  O'Callahan  v.  Boeing,  72  Mich. 
669,  40  N.  W.  843. 

Sec.  940.    Instructions  are  to  be  considered  as  a  whole,  and 
unimportant  defects  are  not  fatal. 

Instructions  are  to  be  considered  as  a  whole,  and  if  they  are 
correct  and  sufficient,  defects  in  unimportant  particulars  are 
not  necessarily  fatal.  Blake  v.  Stump,  73  Md.  160,  20  A.  788, 
10  L.  R.  A.  103;  French  v.  McKay,  181  Mass.  485,  63  N.  E. 
1068;  Walton  v.  Cheesebrough,  167  N.  Y.  606,  60  N.  E.  1121; 
Bickart  v.  Hoffman,  19  N.  Y.  S.  472;  Wilson  v.  Nuber  (Tex. 
Civ.  App.  '02),  68  S.  W.  800. 

Sec.  941.    Instruction  proper  as  to  burden  of  proving  a  par- 
ticular fact  in  issue. 

It  is  proper  to  instruct  as  to  who  bears  the  burden  of  proof  and 
an  instruction  that  conduct  which  imputes  bad  faith  upon  the 
part  of  an  agent  to  sell  real  estate  must  be  shown  by  the  party 
claiming  it,  is  proper.  Buckingham  v.  Harris,  10  Colo.  455, 15  P. 
817 ;  Harrison  v.  Pusterska,  97  Iowa,  166,  66  N.  W.  93. 

Sec.  942.    Instruction  erroneous  that  burden  is  on  party  to 

prove  a  fact  not  denied 

In  charging  the  jury  it  is  error  to  place  the  burden  on  a 
party  to  prove  facts  which  are  not  denied.  Anderson  v.  Brad- 
ford, 102  Mo.  App.  433,  76  S.  W.  726. 


770  AMEBICAN  LAW  HEAL  ESTATE  AGENCY. 

Sec.  943.    Instruction  properly  refused,  as  too  broad. 

Where  plaintiff  averred  that  he  was  to  have  all  proceeds  of 
sales  over  the  net  price  and  defendant  denied  this,  and  counter- 
claimed  that  plaintiff  agreed  to  sell  the  lots  for  one  dollar  per 
front  foot;  that  plaintiff  had  paid  himself  all  he  had  earned 
out  of  the  proceeds  collected  and  owed  a  certain  balance  of 
such  proceeds  to  defendant.  Held,  that  a  charge  that  plaintiff 
had  the  burden  of  showing  that  he  had  agreed  for  larger  pay 
than  one  dollar  per  front  foot  or  was  entitled  to  any  excess  was 
too  broad.  Glover  v.  Henderson,  120  Mo.  367,  25  S.  W.  175. 
Sec.  943a.  Modification  of  instruction  to  jury. 

In  an  action  on  a  contract  to  recover  compensation  for  selling 
real  estate,  instruction  that  defendant  had  a  right  to  revoke  the 
contract  and  deprive  plaintiff  of  compensation;  held,  properly 
modified  so  as  to  require  such  revocation  to  have  taken  place 
prior  to  the  execution  of  a  sale.  Watson  v.  Vollentine,  183  111. 
App.  559. 

Sec.  944.    Error  to  leave  compliance  with  contract  to  jury* 

that  being  a  question  of  law. 

In  an  action  by  a  broker  to  recover  commissions  for  a  sale 
of  land,  an  instruction  leaving  it  to  the  jury  to  determine 
whether  the  plaintiff  had  complied  with  his  contract  so  as 
to  entitle  him  to  recover  commissions  was  error,  that  being  a 
question  of  law  for  the  court,  the  contract  being  in  writing. 
Goodson  v.  EmUeton,  106  Mo.  App.  77,  80  S.  W.  22. 

Sec.  945.  Error  to  instruct  that  broker  was  entitled  to  com- 
missions on  finding  purchaser,  when  principal's  approval 
was  necessary. 

Where  a  contract  of  sale  was  to  be  approved  by  the  owner, 
an  instruction  that  plaintiff  was  entitled  to  commissions  if  lie 
found  a  purchaser,  though  defendant  refused  to  carry  out  the 
trade,  was  erroneous.  Coin  v.  Hess}  102  Iowa,  140,  71  N.  W.  218. 

Sec.  946.  Instruction  based  upon  wrong  hypothesis  is  errone- 
ous. 

In  an  action  by  a  broker  for  commissions  lost,  the  plaintiff 
alleged  that  defendant  gave  plaintiff  the  exclusive  right  ta 


PLEADINGS,  PRACTICE,  ETC.  771 

sell  the  property  for  $3,000,  defendant  reserving  only  the  right 
to  sell  the  property  himself  for  not  less  than  that  sum;  that 
plaintiff  procured  a  purchaser,  who  was  ready  and  ahle  to 
purchase  for  that  sum,  but  that  defendant  previously  sold  the 
property  for  $2,500;  defendant  admitted  the  contract,  except 
that  he  bound  himself  not  to  sell  for  less  than  $3,000,  which  he 
denied,  and  admitted  that  he  sold  the  land  as  alleged.  Held, 
that  an  instruction  that  if  there  was  a  contract  between  the  par- 
ies by  which  plaintiff  procured  a  purchaser,  "defendant  not  hav- 
ing sold  the  land,"  then  plaintiff  would  be  entitled  to  recover, 
was  erroneous,  as  based  on  the  hypothesis  that  defendant  had  not 
sold  the  land,  which  was  not  in  issue,  defendant  having  admitted 
that  he  sold  the  land ;  the  instruction  thereby  practically  amounted 
to  directing  a  verdict  for  the  defendant.  Hughes  v.  McCullough, 
39  Ore.  372,  65  P.  85;  Witt  v.  Schwartz  (Tex.  Civ.  App.  '09), 
120  S.  W.  1039;  Harris  v.  Morton  &  Co.,  167  N.  Y.  Sup.  80;. 
101  Misc.  Rep.  398. 

Sec.  947.    Instruction  held  erroneous  that  placed  undue  stress 

upon  payment  as  indicating  the  principal. 
On  the  question  as  to  whether  W.  acted  as  agent  for  plain- 
tiff or  defendant,  a  charge  that,  in  this  connection  the  jury 
should  consider  from  whom  W.  got  his  pay,  whom  he  asked  to 
pay  him,  and  the  fact  that  W.  had  authority  to  sell  the  lot  in 
question,  is  erroneous,  as  giving  undue  prominence  to  the  fact 
as  to  who  paid  for  the  service,  and  allowing  the  jury  to  infer 
previous  authority  to  sell  from  the  fact  of  payment  for  serv- 
ices in  selling.  Williamson  v.  Tyson,  105  Ala.  644,  17  S.  336. 

Sec.  948.  Instruction  that,  if  by  the  terms  of  the  contract, 
the  broker  had  nothing  to  do,  there  was  no  consideration 
for  the  promise,  is  proper. 

In  an  action  for  real  estate  commissions,  defendant  is  entitled 
to  an  instruction  that  if,  by  the  terms  of  the  contract,  it  is 
shown  that  there  was  nothing  for  the  brokers  to  do,  then  the 
promise  to  pay  them  commissions  was  without  consideration 
and  void.  Wolff  v.  Denboskey,  74  N.  Y.  S.  565,  66  App.  Div. 
428,  36  Misc.  643. 


778  AMEBICAN  LAW  EEAL  ESTATE  AGENCY. 

Sec.  949.    An  instruction  is  objectionable  if  jury  not  directed 
that  belief  must  rest  on  evidence. 

An  instruction  is  objectionable  if  the  jury  are  not  directed 
that  their  belief  must  be  based  on  the  evidence.  Champion 
Iron  Fence  Co.  v.  Bradley,  10  111.  App.  328.  See  also  Sec.  1038. 

Sec.  950.    Instruction  that  plaintiff  was  entitled  to  recover 
$1,000,  erroneous,  where  nothing  to  show  brokers  got  it. 

In  assumpsit  by  a  principal  against  real  estate  brokers  for 
money  had  and  received,  an  instruction  that  if  the  brokers 
sold  the  principal's  farm  for  $11,000,  but  accounted  to  him 
only  for  $10,000,  the  principal  is  entitled  to  receive  $1,000,  is 
erroneous,  where  there  is  evidence  that  the  purchaser,  with 
the  principal's  knowledge,  bought  from  one  who  had  a  prior 
option  on  the  land,  and  there  is  no  evidence  that  the  defend- 
ants ever  received  the  $1,000.  Henshaw  v.  Wilson,  46  111.  App. 
364. 

Sec.  951.    Instruction  properly  refused  which  contemplated 
that  no  leases  were  made  except  through  brokers. 

In  an  action  to  recover  brokerage  for  effecting  a  lease  of 
real  property,  plaintiff  did  not  allege  that  he  had  been  em- 
ployed by  defendant,  but  alleged  that  defendant  accepted  plain- 
tiff's services  with  knowledge  that  they  had  been  rendered. 
Held,  that  it  was  proper  to  refuse  plaintiff's  request  to  charge 
that,  while  the  owner  was  entitled  to  know  that  the  brokers 
had  been  instrumental  in  sending  a  tenant,  yet,  when  he  knows 
that  the  tenant  had  received  information  of  his  intention  to 
let  and  his  price,  the  owner  is  bound  to  inquire  where  the  ten- 
ant got  the  information,  as  such  instruction  presupposes  that 
leases  are  never  made  without  the  intervention  of  brokers,  and 
that  no  information  could  be  received  as  to  what  property  was 
to  be  let,  except  through  brokers.  Tinkham  v.  Knox,  21  N.  Y.  S. 
954,  2  Misc.  579. 

Sec.  952.    Instruction  that  plaintiffs  could  not  recover  unless 

they  secured  a  purchaser  at  price  stated,  erroneous. 
In  an  action  by  real  estate  agents  to  recover  commissions,  it 
was  error  to  instruct  the  jury  that,   if  defendant  agreed  to 
give  plaintiffs  a  particular  sum  in  case  they  sold  his  farm  at 


PLEADINGS,  PEACTICE,   ETC.  773 

a  specified  price,  plaintiffs  could  not  recover  unless  they  sold 
or  procured  a  purchaser  for  the  property  at  the  price  speci- 
fied, defendant  having  sold  the  property  to  the  purchaser  pro- 
cured by  plaintiffs,  for  a  price  less  than  that  specified,  and  to 
that  extent  availed  himself  of  plaintiff's  exertions.  Wetzell 
v.  Wagoner,  41  Mo.  App.  509. 

Sec.  953.    Instruction  that  bringing  parties  together  is  not 
enough,  unless  efficient  cause  of  sale,  is  incorrect. 

In  an  action  by  a  broker  to  recover  commissions,  a  charge 
that,  "merely  to  bring  the  buyer  and  seller  together  is  insuffi- 
cient to  entitle  an  agent  to  a  commission,  unless  it  is  the  effi- 
cient cause  of  the  sale,"  is  incorrect,  and  properly  refused. 
Bowser  v.  Field  (Tex.  Civ.  App.  '91),  17  S.  W.  45. 

Sec.  953a.    Error  in  charge  omitting  that  broker  must  be  the 

procuring  cause  of  the  sale. 

The  error  in  an  instruction  given  at  the  instance  of  plain- 
tiff, in'  an  action  for  commissions  for  procuring  a  purchaser 
of  real  estate,  authorizing  a  recovery  on  a  finding  that  plain- 
tiff was  employed  to  procure  a  purchaser,  and  introduced  a 
customer  to  whom  a  sale  was  subsequently  made,  arising  from 
the  failure  to  require  a  finding  that  the  broker  was  the  pro- 
curing cause  of  the  sale,  was  not  cured  by  a  charge,  given  at 
the  instance  of  the  defendant,  that  before  judgment  could  be 
rendered  for  plaintiff,  he  must  show  that  through  his  services 
one  was  induced  to  purchase  the  property,  since  the  two  in- 
structions were  contradictory.  Eussell  v.  Poor  (Mo.  App.  '08), 
119  S.  W.  433. 

Sec.  954.    Instruction  to  find  for  broker,  if  found  to  be  the 

procuring  cause  of  sale,  is  correct. 

An  instruction  to  find  for  the  broker,  if  it  was  through  the 
efforts  and  information  given  by  him  that  the  owner  and  the 
purchaser  were  brought  together  as  seller  and  buyer,  given  in 
connection  with  a  charge  that  the  broker  was  entitled  to  com- 
missions if  he  afterwards  became  the  procuring  cause  of  such 
sale,  stated  the  correct  law  of  the  case.  Bowser  v.  Field  (Tex. 
C.  A.  '91),  17  S.  W.  45. 


774  AMEBICAN   LAW   EEAL   ESTATE   AGENCY. 

Sec.  954a.    Improper  modification  of  charge  asked  for  by  de- 
fendant. 

In  an  action  by  real  estate  brokers  for  commissions  a  re- 
quest to  charge  that  plaintiffs  could  not  recover  if  the  pros- 
pective purchasers  had,  in  fact,  and  in  good  faith,  abandoned 
their  negotiations  for  the  purchase  through  plaintiffs  before 
the  matter  was  taken  up  with  the  purchasers  by  another  per- 
son, was  improperly  modified  by  adding  a  further  condition 
to  the  defeat  of  plaintiffs'  recovery,  that  plaintiffs  had  led  de- 
fendants, through  their  attorney,  to  believe  that  plaintiffs  had 
abandoned  all  efforts  to  make  a  sale,  and  had  abandoned  the 
idea  of  association  with  the  transaction  any  further;  since,  to 
warrant  a  recovery  for  plaintiffs  their  services  must  have  been 
the  efficient  cause  of  the  sale,  regardless  of  their  abandonment 
of  the  transaction,  and  defendants,  as  well  as  plaintiffs,  could 
be  the  moving  party  in  the  cancellation  of  the  agency.  Young 
v.  HuUard,  154  Mich.  218,  15  D.  L.  N.  725,  117  N.  W.  632. 

Sec.  955.  Instruction  that  if  broker  found  a  purchaser  for 
property  on  terms  stated,  entitled  to  commissions,  proper. 
A  real  estate  agent  sued  on  a  contract  for  commissions  for 
a  sale  of  land;  the  contract  was  made  a  part  of  the  complaint, 
but  was  not  introduced  in  evidence;  the  court  charged  that 
as  plaintiff  had  undertaken  to  effect  a  sale  or  procure  a  pur- 
chaser, in  accordance  with  the  contract,  it  was  necessary  for 
him  to  prove  that  he  had  found  a  purchaser  who  was  willing 
to  take  the  property  on  the  terms  provided  in  the  contract. 
Held,  that  as  the  charge,  when  referring  to  the  complaint, 
was  clearly  correct,  and  the  court  had  evidently  given  it  un- 
der the  impression  that  the  contract  was  in  evidence,  plaintiff 
could  not  be  heard  to  object.  Hegman  v.  Hood,  3  Ind.  App.  456, 
29  N.  E.  1141. 

Sec,  955a.    Instruction  that  if  broker  was  efficient  cause  of 
sale  entitled  to  commission,  held  proper. 

An  instruction  that  if  plaintiffs  were  employed  to  defendant  to 
effect  an  exchange  or  sale,  and  were  the  efficient  and  procuring 
cause  of  the  sale,  they  were  entitled  to  commission,  no  matter 


PLEADINGS,  PEACTICE,  ETC.  775 

how  slight  the  service;  held,  correct  and  not  misleading.    Begelin 
v.  Lottgren,  207  111.  App.  409. 

Sec.  956.    Instruction  premature,  as  jury  should  first  find  that 

agent  was  authorized  to  act  for  principal. 
In  an  action  by  a  real  estate  broker  to  recover  on  a  special 
contract  for  procuring  a  purchaser,  the  contract  having  been 
made  by  one  alleged  to  be  the  agent  of  the  owner,  and  the 
authority  of  the  agent  being  one  of  the  issues,  the  court  prop- 
erly refused  an  instruction  stating  that  the  plaintiff  was  en- 
titled to  recover  if  he  was  employed  by  the  owner,  or  some 
one  acting  for  her,  without  stating  that  such  person  must  be 
authorized  to  so  act.  Funk  v.  Latta,  43  Neb.  739,  62  N.  W.  65. 

Sec.  956a.    Charge  in  case  of  implied  contract  held  correctly 

given. 

In  an  action  for  commissions,  it  was  admitted  that  defend- 
ant sold  the  property,  and  the  court  instructed  that  if  plain- 
tiff was  a  means  of  procuring  a  purchaser  for  the  property, 
and  defendant  agreed  to  pay  a  reasonable  commission  for  his 
services,  or  permitted  plaintiff  to  render  services  under  circum- 
stances which  would  lead  a  reasonably  prudent  man  to  believe 
that  plaintiff  expected  compensation  therefor,  the  jury  should 
find  for  the  plaintiff.  Held,  that  the  instruction  properly  sub- 
mitted the  question  whether  the  defendant  agreed  to  pay  plain- 
tiff for  his  services,  or  permitted  him  to  render  them  under 
circumstances  leading  a  reasonably  prudent  man  to  believe  com- 
pensation was  expected.  Bullock  v.  Menninger  (Ky.  Ct.  App. 
'10),  125  S.  W.  256;  Brady  v.  Richey  &  Casey,  202  S.  W.  170, 
—  Tex.  Civ.  App.  — .  See  also  Sec.  931. 

Sec.  957.  Instruction  that  if  plaintiff  performed  some  service 
though  he  did  not  sell,  entitled  to  some  compensation, 
proper. 

In  an  action  to  recover  for  the  value  of  services  as  agent 
in  selling  real  estate,  when  there  is  testimony  tending  to  show 
that  the  plaintiff  rendered  some  service,  but  did  not  effect  a 
sale,  if  the  jury  believed  that  he  rendered  some  service,  an 
instruction  that  he  is  entitled  to  recover  on  a  quantum  meruit 


776  AMERICAN  LAW   REAL   ESTATE   AGENCY. 

is  not  improper.  McMurtry  v.  Madison,  18  Neb.  291,  25  N.  W. 
85.  (This  is  contrary  to  the  general  rule,  that  the  agent  stakes 
his  efforts  upon  success,  and  if  unsuccessful  loses  all.) 

Sec.  958.  Instruction  is  erroneous,  that  there  is  room  for  a 
verdict  of  no  cause  of  action,  where  defendant  admits 
broker  performed  services. 

Where  defendant  admits  that  plaintiff  was  instrumental  in 
effecting  the  sale,  but  disputes  the  value  of  the  services,  it  is 
error  to  charge  the  jury  that  there  is  room  for  a  verdict  of  no 
cause  of  action.  Scribner  v.  Hazeltine,  79  Mich.  37,  44  N.  "W. 
618. 

Sec.  959.  Instruction  that  if  agreement  was  as  claimed  by 
defendant  plaintiff  entitled  to  verdict,  improper. 

Plaintiff  having  brought  defendant  and  a  purchaser  together, 
a  sale  was  effected  by  them  for  $10,000;  plaintiff  claimed  that 
he  was  authorized  to  sell  for  this  amount  and  for  a  commission 
thereon,  and  after  testifying  to  this  agreement,  he  testified 
that  just  before  and  after  defendant  made  the  sale  he  told 
plaintiff  that  he  would  make  it  satisfactory  to  him  and  pay  him 
for  his  services;  defendant's  claim  was  that  plaintiff  was  to 
receive  as  commissions  only  such  sum  as  he  should  obtain  in 
excess  of  $10,000.  Held,  that  there  was  nothing  in  the  case 
which  entitled  plaintiff  to  an  instruction  that,  if  the  agreement 
was,  in  the  first  place,  as  claimed  by  defendant,  still  plaintiff 
was  entitled  to  a  verdict  if  he  consented  to  the  sale  for  $10,000, 
and  the  defendant  thereupon  renewed  his  promise  to  pay  the 
commission.  Morehouse  v.  Remsen,  59  Conn.  392,  22  A.  427. 

Sec.  960.  Instruction  on  contract,  either  joint  or  several,  that 
defendant  only  liable  for  share,  properly  refused. 

Where  the  evidence  shows  that  defendant's  contract  to  pay 
plaintiffs  a  certain  commission  for  a  sale  of  land,  is  either  a 
joint  contract  with  that  of  other  owners  of  the  land,  or  is  an 
individual  contract,  the  court  properly  refused  to  charge  that 
defendant  is  only  liable  for  his  share  of  the  commission  to  the 
extent  of  his  individual  interest ;  their  liabilities  can  not  be  ap- 
portioned. Mosseau  v.  La  Roche's  Sons,  80  Ga.  568,  5  S.  E.  780. 


PLEADINGS,   PRACTICE,  ETC.  777 

Sec.  961.    Instruction  that  if  jury  find  contract  made  and  lots 

sold,  plaintiff  entitled  to  commissions,  proper. 
In  an  action  for  commissions  on  sales  of  lots,  an  instruc- 
tion, after  stating  the  respective  claims  of  the  parties,  that  if 
the  jury  find  that  the  arrangement  alleged  by  plaintiff  was 
made  and  after  that  arrangement  defendant's  lots  were  sold 
plaintiff  is  entitled  to  recover  the  amount  claimed  by  him  as 
commissions,  is  proper,  there  being  no  question  as  to  the  price 
for  which  the  lots  were  sold.  Ockenfells  v.  Moeller,  79  Mich. 
314,  44  N.  W.  790. 

Sec.  962.    Instruction  that  broker  should  have  exercised  the 
greatest  care,  requires  too  high  a  degree  of  care. 

In  an  action  on  notes  defendant  pleaded  in  reconvention  that 
she  had  given  plaintiff  certain  money  to  loan  for  her,  but  which, 
through  his  negligence,  she  had  lost ;  the  evidence  tended  to 
prove  that  plaintiff  had  received  a  commission  from  the  bor- 
rower for  making  the  loan.  Held,  an  instruction  that  if  plain- 
tiff received  a  profit  from  the  lending  he  was  bound  to  use  the 
greatest  degree  of  care  that  an  ordinarily  prudent  person  would 
exercise  under  like  circumstances,  was  erroneous,  as  requiring 
too  high  a  degree  of  care;  plaintiff,  as  bailee  or  broker,  being 
only  required  to  exercise  the  care  of  an  ordinarily  prudent  per- 
son. Cdruthers  v.  Boss  (Tex.  Civ.  App.  '01),  63  S.  W.  911. 

Sec.  963.    Instruction  that  it  was  incumbent  on  agent  to  show 
land  worth  the  price  error. 

Plaintiff  authorized  defendant,  who  was  a  broker,  to  sell  a 
tract  of  land,  and  to  contract  and  advertise  at  plaintiff's  ex- 
pense; it  was  afterwards  agreed  that  the  advertisement  should 
be  discontinued,  and  plaintiff  told  defendant  that  if  he  got  a 
piece  of  property  to  sell  for  which  plaintiff  could  turn  in  his 
property  as  part  payment  he  desired  to  know  it;  afterward  de- 
fendant and  others  obtained  an  option  on  some  land,  and 
notified  plaintiff,  who,  on  being  told  of  the  price  which  defend- 
ant and  his  associates  were  to  pay  for  it,  purchased  it,  after 
examination,  giving  his  land  as  part  payment;  later,  plaintiff 
sued  on  the  ground  that  defendant  was  his  agent  and  liable  to 


778  AMERICAN  LAW   REAL   ESTATE   AGENCY. 

him  for  the  profit.  Held,  that  the  business  was  in  no  sense 
confidential,  and  it  was  error  to  instruct  that  it  was  incumbent 
on  defendant  to  show  that  when  plaintiff  purchased  he  had 
knowledge  of  all  the  facts,  and  that  the  land  was  worth  what 
he  paid  for  it.  Pomeroy  v.  Wimer,  167  Ind.  440,  78  N.  E.  233, 
79  N.  E.  446. 


Sec.  964.  Instruction  that  although  agent  could  sell  land  at 
price  fixed,  did  not  excuse  from  selling  at  best  price  ob- 
tainable, proper. 

In  an  action  against  brokers  to  recover  money  retained  by 
them  out  of  the  purchase  price,  an  instruction  that  though 
plaintiff  gave  defendants  authority  to  sell  his  land  for  a  spe- 
cific sum  per  acre,  such  authority  did  not  excuse  the  defend- 
ant from  selling  for  the  best  obtainable  price,  was  not  errone- 
ous, on  the  rule  that  it  made  the  agent  exceed  the  instruc- 
tions of  his  principal,  and  made  him  liable  if  he  did  not.  Harri- 
son v.  Lakeman,  189  Mo.  581,  88  S.  W.  53;  Light enstein  v. 
Mott,  91  N.  Y.  S.  57,  99  App.  Div.  570.  See  also  Sec.  290. 

Sec.  965.  Instruction  assuming  from  purchaser  giving  check 
to  seller,  who  turned  it  over  to  broker,  that  latter  received 
it  from  purchaser,  proper. 

Where,  in  an  action  to  recover  from  brokers  a  portion  of 
the  purchase  money  retained  by  them  for  effecting  a  sale  of 
plaintiff's  land,  the  evidence  showed  that  the  purchaser  gave 
his  check  to  plaintiff,  and  he  turned  it  over  to  defendants, 
who  subsequently  gave  plaintiff  their  check,  an  instruction  as- 
suming that  defendants  received  the  money  from  the  purchaser 
was  not  erroneous.  Harrison  v.  Lakeman,  189  Mo.  581,  88  S. 
W.  53. 

Sec.  966.    Instruction  that  if  broker  misread  contract  to  prin- 
cipal to  deceive,  not  binding  on  him,  proper. 
Where  a  land  owner  sued  his  brokers,  who  had  effected  a 
sale,  to  recover  a  portion  of  the  purchase  money  which  had 
been  retained  by  them,  on  the  ground  that  the  contract  was 


PLEADINGS,  PRACTICE,  ETC.  779 

not  binding  on  him,  because  he  had  been  fraudulently  induced 
to  enter  into  it  by  the  act  of  the  defendants  in  not  correctly 
reading  the  contract  to  him,  and  also  on  the  ground  that  the 
contract  had  been  qualified  by  the  alteration  thereof  by  de- 
fendants, an  instruction,  that  if  plaintiff  signed  the  original 
contract,  defendants  in  reading  it  to  him  having  fraudulently 
deceived  him,  then  the  contract  was  not  binding,  was  not  er- 
roneous, on  the  theory  that  the  action  was  not  one  for  the 
cancellation  of  a  contract.  Id. 


Sec.  967.    Instruction  that  contract  was  severable,  and  bro- 
ker entitled  to  compensation  for  one  deal,  proper.  • 

Evidence  held  conclusive  that  the  contract  by  which  appel- 
lant agreed  to  pay  a  commission  of  one  dollar  per  acre  for 
procuring  contemplated  exchanges  of  real  estate  for  other  prop- 
erty was  not  an  entire  but  a  severable  contract;  the  respond 
ent  was  entitled  to  his  commissions  upon  effecting  one  of  the 
contemplated  trades,  and  the  court  did  not  err  in  so  instruct- 
ing the  jury.  Goodspeed  v.  Miller,  98  Minn.  457,  108  N.  W. 
817.  See  also  Sec.  496. 

Sec.  968.    Instruction  that  propositions  were  substantially  the 
same,  erroneous,  being  by  different  brokers  and  different. 

In  an  action  by  a  real  estate  broker  for  commissions,  it 
appeared  that  plaintiff  obtained  for  defendant's  property,  val- 
ued at  $90,000,  an  offer  consisting  of  an  equity  in  certain 
apartment  houses  estimated  at  $60,000,  and  an  equity  in  cer- 
tain dwelling  houses  estimated  at  $30,000,  which  offer  was  de- 
clined; that  plaintiff  thereafter  obtained  from  the  same  per- 
son an,  offer  of  an  apartment  house,  and  a  mortgage  for  $30,000 
on  the  property  to  be  taken  from  defendant,  which  was  also 
declined;  and  that  another  broker,  in  ignorance  of  what  plain- 
tiff had  done,  subsequently  obtained  from  the  same  person  the 
offer  of  an  equity  in  an  apartment  house  estimated  at  $15,000, 
and  mortgages  for  $85,000  on  the  property  taken  of  defendant, 
which  defendant  accepted.  Held,  that  the  offer  so  accepted 
was  substantially  different  from  either  of  those  submitted  by 
plaintiff,  and  therefore  an  instruction,  on  the  theory  that  they 


780  AMERICAN  LAW   REAL  ESTATE  AGENCY. 

•were   substantially  the   same,   was  misleading.     Crowningshield 
v.  Foster,.  169  Mass.  237,  47  N.  E.  879. 

Sec.  969.  Instruction  proper  that  if  contract  was  altered 
before  purchaser  executed  it,  there  was  no  meeting  of 
minds. 

Where  a  broker,  in  an  action  for  services  in  procuring  de- 
fendant a  purchaser  for  land,  claimed  that  both  parties  had 
signed  duplicate  contracts  of  sale,  and  defendant  claimed  that 
after  signing  the  papers  the  purchaser  took  them  and  signed 
only  after  making  material  alterations  therein,  and  that  he 
thereupon  refused  to  re-execute  the  contracts  as  altered,  and 
that  they  were  never  delivered,  it  was  error  to  refuse  an  in- 
struction that  if,  after  defendant  executed  the  contracts,  they 
were  altered  before  the  purchaser  executed  them,  and  were 
never  subsequently  re-executed,  there  was  no  meeting  of  minds. 
Bruce  v.  Hurlbut,  66  N.  Y.  S.  1127,  54  App.  Div.  616 ;  Ballou 
v.  Bergvendsen,  9  N.  D.  285,  83  N.  W.  10.  See  also  Sec.  996. 
Compare  Sec.  485. 

Sec.  970.  Instruction  erroneous  that  broker  to  find  purchaser 
is  entitled  to  commissions,  though  paid  by  purchaser. 

Plaintiff  was  employed  by  defendant  to  find  a  purchaser  for 
lands,  and  was  also  under  an  agreement  with  certain  prospec- 
tive purchasers  by  which  he  was  to  participate  with  them  in 
the  advantages  of  the  purchase  if  made ;  he  induced  these  pur- 
chasers to  inspect  the  lands,  and  on  their  objecting  to  the 
price,  defendant,  unknown  to  them,  included  the  plaintiff's 
commissions  from  defendant,  urging  them  to  make  the  pur- 
chase, and  finally  induced  them  to  agree  to  do  so;  afterwards, 
when  they  discovered  the  dual  character  of  plaintiff's  agency, 
they  refused  to  consummate  the  contract  and  defendant  re- 
fused to  pay  plaintiff  commissions,  whereupon  he  brought  suit 
therefor.  Held,  that  a  charge  that  if  defendant  employed 
plaintiff  to  find  a  purchaser  at  a  price  which  would  be  satis- 
factory to  defendant  and  the  purchaser,  defendant  could  not 
defeat  the  action  by  proof  that  plaintiff  was  also  to  be  paid 
for  his  services  by  the  purchaser,  was  erroneous.  Green  v. 
Southern  States  Lumber  Co.,  141  Ala.  680,  37  S.  670.  See  also 
Sec.  314. 


PLEADINGS,  PHACTICE,  ETC.  781 

Sec.  970a.    Erroneous  instruction  to  jury  as  to  waiver. 

Where  the  only  testimony  as  to  whether  or  not  there  was 
a  modification  of  the  agreement  of  defendant  that  plaintiff, 
a  real  estate  agent,  should  have  a  commission  if  a  trade  of 
defendant's  property  was  made  with  S.,  was  defendant's  tes- 
timony, contradicted  by  plaintiff,  that  after  the  first  attempt 
at  a  trade  had  failed,  he  had  a  conversation  with  plaintiff, 
in  which  plaintiff  said  that  S.  would  not  trade,  and  that  they 
would  drop  the  deal,  and  that  if  defendant  disposed  of  the 
property  himself,  or  through  another  agent,  he  did  not  expect 
a  commission;  that  he  only  expected  one  if  he  closed  the  deal 
himself;  the  only  question  for  the  jury  was  whether  such  con- 
versation occurred,  as,  if  it  did,  plaintiff  would  be  presumed 
to  have  understood  it,  so  that,  the  sale  having  been  consum- 
mated by  another  agent,  it  was  error  to  instruct  that  for  de- 
fendant to  escape  liability  to  plaintiff  he  must  show,  not  only 
that  he  understood  plaintiff  had  waived  his  claim  to  a  com- 
mission, but  also  that  plaintiff  understood  that  he  was  to  waive 
such  claim.  Romans  v.  Thew  (Iowa  Sup.  '09),  120  N.  W.  629. 

Sec.  971.    Instruction  properly  refused  that  if  property  was 
brought  to  defendant's  notice  in  advance  of  plaintiff's, 
latter  not  entitled  to  recover  share  of  commissions. 
Where,  in  an  action  by  a  real  estate  broker  to  recover  from 
defendant  one-half  of  the  commissions  received  by  the  latter 
on  a  sale  of  certain  property   for  the  sale  of  which  the  plain- 
tiff was  agent,  the  complaint  alleged  that  plaintiff  brought  the 
property  to  defendant's  notice,  that  the  latter  agreed  to  co- 
operate with  plaintiff  in  the  sale  of  the  property,  and  in  con- 
sideration of  his  bringing  the  same  to  defendant's  notice  and 
of  his  services,  defendant  agreed  to  pay  plaintiff  one-half  of 
the  commissions  received  on  the  sale  of  the  property,  the  court 
properly  refused  to  charge  that  if  the  premises  in  question  were 
brought  to  defendant's  notice  prior  to  the  plaintiff's  bringing 
notice  thereof  to  defendant,  he  could  not  recover  on  the  con- 
tract.   Alden  v.  Robinson,  98  N.  Y.  S.  675. 
Sec.   972.    Instruction  to   find  for  defendant   error,  where 
plaintiff  shows  he  induced  buyer  to  make  offer  accepted. 
In  an  action  for  commissions  for  the  sale  of  real  estate,  the 
only  evidence  introduced  was  by  the  plaintiff,  which  showed 


782  AMERICAN  LAW   REAL   ESTATE  AGENCY. 

an  employment  to  sell  land  at  a  fixed  price;  that  the  agent  in- 
duced the  purchaser  to  make  an  offer  for  it;  that  the  offer  was 
finally  accepted  upon  a  sale  of  the  property  at  auction  on  the 
terms  of  the  purchaser's  offer  to  the  agent;  there  was  no  no- 
tice of  discharge  from  further  services  given;  and  the  ser- 
vices were  worth  a  certain;  sum,  as  fixed  by  the  contract  of 
employment,  which  was  proved.  Held,  that  the  court  erred  in 
giving  peremptory  instructions  at  the  close  of  plaintiff's  tes- 
timony to  find  for  the  defendants.  West  v.  Prewitt,  19  Ky. 
L.  R.  1480,  43  S.  W.  467;  Muskowitz  v.  Miller,  113  N.  Y.  S. 
1037.  Compare  Sec.  138. 

Sec.  973.    Instruction  that  plaintiff  was  entitled  to  recover  if 
cause  of  sale  error,  where  employment  as  agent  is  in  issue. 

Where  the  question  whether  a  real  estate  broker  was  em- 
ployed by  the  owner  is  in  issue  in  an  action  for  broker's  com- 
missions, and  the  evidence  thereon  is  conflicting,  it  is  error  to 
instruct  that  the  broker  is  entitled  to  recover,  if  he  was  the 
procuring  cause  of  sale,  for  the  commissions  as  claimed,  as  the 
instruction  takes  the  question  of  employment  from  the  jury. 
Benedict  v.  Pell,  74  N.  Y.  S.  1085,  70  App.  Div.  40. 
Sec.  974.  Instruction  that  if  contract  sued  on  was  different, 
plaintiff  barred  recovery  error,  is  a  question  of  law. 

In  an  action  by  a  broker  to  recover  commissions  for  finding 
a  purchaser  for  land,  an  instruction  that  if  the  contract  sued 
on  dinered  from  the  contract  made,  plaintiff  could  not  re- 
cover, was  erroneous,  as  leaving  a  question  of  law  to  the  jury. 
Nichols  v.  WUtacre,  112  Mo.  App.  692,  87  S.  W.  594. 

Sec.  975.  Instruction  on  defendant's  right  to  terminate 
agency,  "broker  entitled  to  fruits  of  seed  sown,"  error. 
In  an  action  by  a  broker  to  recover  commissions  for  a  sale 
of  land,  it  appeared  that  some  months  after  the  authority  to 
sell  had  been  revoked  for  failure  of  the  broker  to  procure  a 
purchaser,  the  owners  sold  the  land  to  one  with  whom  the  bro- 
ker had  attempted  to  engotiate  a  sale.  Held,  error  to  submit 
the  cause  to  the  jury  to  determine  whether  the  plaintiff  was 
the  efficient  cause  in  procuring  the  sale,  and,  on  defendant's 
request,  to  charge  that  defendant  had  the  right  to  terminate 
his  employment  at  any  time,  if  he  did  not  within  a  reasonable 


PLEADINGS,  PRACTICE,  ETC.  783 

time  produce  a  purchaser,  to  reply:  "I  have  already  charged 
that,  but  that  does  not  prevent  him  from  being  entitled  to  the 
fruits  of  the  seed  he  had  already  sown."  Donovan  v.  Weed, 
182  N.  Y.  43,  74  N.  E.  563. 

Sec.  975a.    Erroneous   instruction   containing   expression   of 

opinion  by  the  court  on  the  weight  of  the  evidence. 
In  an  action  by  a  broker  for  commissions,  the  issue  was 
whether  plaintiff  had  sent  the  purchaser  to  defendant,  and 
there  was  evidence  for  defendant  that  plaintiff  had  told  de- 
fendant that  he  did  not  know  the  purchaser.  The  court  in- 
structed the  jury  that,  if  they  found  any  testimony  to  the 
contrary  of  plaintiff's  assertion  that  he  sent  the  purchaser  to 
defendant,  they  were  at  liberty  to  find  it,  but  if  they  could 
not,  then  they  were  bound  to  take  the  testimony  as  it  stood, 
and  that  they  were  to  examine  the  evidence  and  find  wherein 
or  whereby  there  was  any  testimony  to  the  effect  that  the  pur- 
chaser did  not  go  to  defendant's  house  under  the  direction  of 
plaintiff,  and,  if  they  found  any  such  testimony,  to  consider  it, 
but  if  they  found  no  such  testimony  that  their  duty  was  plain. 
Held,  that  the  charge  was  erroneous  as  an  expression  of  opinion 
by  the  court,  that  there  was  no  testimony  in  the  record  contra- 
dictory to  plaintiff's  assertion  that  he  sent  the  purchaser  to 
defendant.  Barendsen  v.  Wilder  (Mich.  Sup.  '09),  122  N.  W. 
355,  16  D.  L.  N.  529. 

Sec.  976.    Instruction  proper  that  broker  could  not  recover 

unless  principal  knew  he  was  employed  by  seller. 
If,  in  an  action  against  a  buyer  of  land  for  a  broker's  com- 
missions, the  plaintiff's  evidence  leaves  it  doubtful  whether, 
while  acting  for  defendant,  he  also  was  employed  by  A.,  the 
owner  of  the  land,  to  sell  it,  or  simply  had  an  option  on  the 
property  at  the  price  named,  the  defendant  is  entitled  to  have 
the  jury  instructed  that,  "if  the  plaintiff  acted  as  agent  for 
A.,  without  disclosing  the  fact  that  he  was  such  agent  to  the 
defendant,  he  can  not  recover  a  commission  from  the  defend- 
ant." Carpenter  v.  Fisher,  175  Mass.  9  55  N.  E.  479.  See 
also  Sec.  314. 


784  AMERICAN  LAW   HEAL  ESTATE  AGENCY. 

Sec.  977.  Instruction  proper  that  brokers  could  not  recover 
unless  defendant  knew  they  would  get  pay  from  the  other 
party. 

On  the  issue,  whether  real  estate  brokers  suing  to  recover 
commissions  for  effecting  an  exchange  of  property,  who  had 
stipulated  for  commissions  from  both  parties,  were  agents  for 
both  parties  so  as  to  forfeit  their  right  to  compensation,  or 
mere  middlemen,  the  court  charged  that  no  recovery  could  be 
had  if  the  contract  was  one  of  agency,  instead  of  that  of  mid- 
dlemen; that  the  brokers  claimed  that  all  they  agreed  to  do 
was  to  find  a  man  willing  to  make  the  trade;  and  that  de- 
fendant claimed  that  they  agreed  to  take  the  property  and  do 
the  best  they  could  with  it;  and  that,  if  defendant's  contention 
were  true,  the  brokers  could  not  recover  commissions,  unless 
defendant  knew,  before  employing  them,  that  they  had  stipu- 
lated for  commissions  from  the  other  party.  Held,  that  the 
instruction  was  sufficient.  Friar  v.  Smith,  120  Mich.  411,  79 
N.  W.  633,  46  L.  B.  A.  229.  See  also  Sec.  314. 

Sec.  978.  Instruction  that  if  commission  was  to  be  paid,  de- 
fendant would  not  have  sold  and  plaintiff  barred  recovery, 
properly  refused. 

In  an  action  by  a  real  estate  broker  for  commissions,  in 
which  there  was  evidence  that  the  principal  had  sold  the  prop- 
erty to  a  purchaser  procured  by  the  broker,  an  instruction  that 
the  defendant  would  not  have  sold  the  property  if  he  had 
known  that  he  had  to  pay  plaintiff  a  commission,  plaintiff 
could  not  recover,  was  properly  refused.  Enochs  v.  Paxton, 
87  Miss.  660,  44  S.  14. 

Sec.  979.  Instruction  that  buyer  by  repeating  offer  was  en- 
abling plaintiff  to  recover,  error  as  suggesting  conspiracy. 

In  an  action  by  a  real  estate  broker  for  a  commission  for 
procuring  a  purchaser  for  a  farm,  who  at  first  stated  to  the 
owner  that  he  would  not  buy  it,  but  who,  on  the  same  day, 
offered  to  take  it  on  the  terms  agreed  on,  an  instruction  that 
he  would  have  no  right  to  return  and  offer  to  take  the  farm 
for  the  mere  purpose  of  collecting  a  commission  from  defend- 
ant, was  erroneous,  as  suggesting  a  conspiracy  between  the 


PLEADINGS,   PRACTICE,   ETC.  785 

broker  and  the  purchaser.     Bailee  v.  McMurray,  113  Mo.  App. 
253,  88  S.  W.  157. 

Sec.  980.    Instruction  to  find  for  plaintiff  if  believed  he  was 

trying  to  sell  land,  not  warranted  by  pleadings. 
Where  a  real  estate  broker,  suing  for  commissions,  alleges 
that  through  his  efforts  the  land  was  sold,  an  instruction  that 
if  the  jury  believe  plaintiff  was  trying  to  sell  the  land,  etc., 
they  should  find  for  him,  is  not  warranted  by  the  pleadings. 
Yarbrough  v.  Cr eager  (Tex.  Civ.  App.  '03),  77  S.  W.  645. 

Sec.   981.    Instruction   proper    defining   distinction  between 
selling  to  broker's  customer  and  to  a  third  party. 

In  an  action  for  commissions  on  a  sale  of  defendant's  land, 
an  instruction  that  the  jury  should  find  for  the  defendant  if 
the  plaintiff  had  been  unable  to  procure  a  purchaser,  and 
had  abandoned  his  efforts  to  procure  one,  was  not  reversible 
error  for  making  defendant's  rights  dependent  upon  two  states 
of  facts,  either  of  which  was  sufficient  in  itself,  in  view  of  the 
fact  that  plaintiff's  claim  was  "that  he  found  a  purchaser  to 
whom  defendant  sold,  pending  plaintiff's  negotiations  for  a 
sale,  and  that  the  court  also  instructed  on  the  distinction  be- 
tween selling  to  the  plaintiff's  customer  and  to  a  third  party. 
Van  Tobel  v.  Stetson,  32  Wash.  683,  73  P.  788. 

Sec.   982.    Instruction   that   sale   effected   through  broker's 
efforts  is  meritorious,  improper. 

In  an  action  by  real  estate  agents  for  commissions,  a  charge 
that  where  a  sale  is  effected  through  the  efforts  of  a  real 
estate  agent,  "his  services  are  regarded  in  law  as  highly  meri- 
torious and  beneficial,"  is  improper.  Bowie  v.  Gage,  127  Wis. 
245,  106  N.  W.  1074,  115  Am.  St.  R.  1010. 

Sec.  983.    Instruction  that  broker  must  show  retainer  or  ac- 
ceptance by  principal,  not  usually  prejudicial. 
An  instruction  that  a  broker  must  show  a  retainer  or  that 
the  principal  accepted  his  agency  and  ratified  his  acts,  is  not 
prejudicial  to  the  principal,  although  there  is  no  evidence  of 
ratification,  where  the  jury  was  instructed  as  to  what  is  nee- 


786  AMERICAN  LAW   REAL   ESTATE   AGENCY. 

essary  to  constitute  a  ratification.    Duncan  v.  Borden,  13  Colo. 
App.  481,  59  P.  60. 

Sec.  984.    Instruction  assuming  broker  acted  for  defendant 

erroneous,  although  that  separately  submitted. 
In  an  action  by  a  real  estate  broker  for  commissions,  the  de- 
fendant answered  denying  the  broker's  employment,  and  tes- 
tified that  he  merely  inquired  of  the  broker  if  the  latter  had  a 
customer  who  would  exchange  land  for  the  defendant's  stock; 
that  the  broker  responded  that  he  had;  that  defendant  then 
said  he  was  putting  in  his  own  time  trading,  and  wanted  it 
understood  that  he  would  not  pay  a  commission;  the  court  in- 
structed, if  it  appeared  that  at  defendant's  instance  the  bro- 
ker procured  a  customer,  etc.,  and  that  it  appeared  that  when 
defendant  listed  his  property  with  the  broker,  the  latter  in 
bringing  the  parties  together,  etc.,  was  acting  for  both  of  them. 
Held,  that  the  instruction  was  erroneous  in  assuming  that  the 
broker  was  acting  for  the  defendant,  though  the  issue  as  to 
defendant's  promise  to  pay  a  'commission  was  separately  sub- 
mitted. Casady  v.  Carralier,  119  Iowa,  500,  93  N.  W.  386. 

Sec.  984a.    Instruction  to  find  for  plaintiff  held  not  mislead- 
ing when  condition  favoring  defendant  also  given. 

Where,  in  an  action  for  a  broker's  commissions  on  a  sale  of 
real  estate,  the  court  charged  that  the  jury  should  find  for  de- 
fendant, if  a  specified  condition  had  been  imposed  for  the  sale, 
and  the  sale  was  made  without  reference  thereto,  an  instruction 
that  if  the  broker  by  himself,  or  through  his  sub-agent,  pro- 
duced a  purchaser  ready,  able  and  willing  to  buy  on  the  terms 
agreed  on  between  the  broker  and  the  owner,  the  owner  was 
liable,  was  not  misleading,  for,  if  the  specified  condition  had 
been  imposed,  the  charge  required  proof  that  the  sale  had  been 
effected  accordingly.  Hansen  v.  Williams  (Tex.  Civ.  App.  '08), 
113  S.  W.  312. 

Sec.  985.    Instruction  that  unless  they  find  contract  entered 

into  must  find  for  defendant,  insufficient. 
In  an  action  by  a  real  estate  agent  for  commissions,  in  which 
defendant  claimed  that  a  contract  to  pay  commissions  was  not 


PLEADINGS,  PRACTICE,   ETC.  787 

made  with  plaintiff  personally,  but  with  him  as  agent  of  his 
father,  an  instruction  that  the  first  question  to  determine  was 
whether  the  contract  was  between  plaintiff  and  defendant,  or 
between  plaintiff's  father  and  defendant,  and  that  unless  the 
jury  find  that  the  contract  was  entered  into  between  plaintiff 
and  defendant  they  should  find  for  the  latter,  was  not  a  suffi- 
cient statement  of  the  principle  that  defendant  was  not  liable 
if  the  contract  was  made  with  the  principal  as  agent.  Snyder 
v.  Fidler,  125  Iowa,  378,  101  N.  W.  130. 

Sec.  986.  Instruction  that  broker  could  recover  if,  when  nego- 
tiations were  broken  off,  buyer  still  intended  to  buy 
erroneous. 

In  an  action  for  commissions  on  a  sale  of  land,  an  instruction 
which  assumes  a  ratification  of  plaintiff's  authority  to  sell,  but 
directs  that  plaintiff  might  recover  if  the  subsequent  sale  of 
the  land  by  the  owner  to  the  same  person  with  whom  plain- 
tiff has  previously  negotiated,  if  at  the  time  negotiations  with 
him  were  broken  off,  the  purchaser  had  not  given  up  the  idea 
of  ultimately  making  the  purchase,  is  erroneous.  GUlet  v. 
Corum,  5  Kan.  608.  See  also  Sec.  447. 

Sec.  986a.  Error  to  refuse  to  instruct  on  joint  contract  that 
verdict  must  be  for  defendant  if  jury  find  contract  was 
with  one. 

In  a  suit  against  two  defendants  for  a  broker's  commission  for 
procuring  a  purchaser  for  lands,  under  a  joint  employment  by  de- 
fendants, it  was  error  to  refuse  to  instruct  that  the  jury  must 
find  for  defendants,  if  one  of  them  alone  employed  plaintiff. 
Handley  v.  Shaffer,  59  S.  286,  177  Ala.  636. 

Sec.  986b.  Charge  of  cancellation  of  broker's  contract  im- 
properly refused. 

In  an  action  for  a  broker's  commissions,  an  instruction  that 
if  defendant  told  plaintiff,  or  his  partner,  to  take  the  land 
off  the  market,  that  it  was  not  for  sale,  to  find  for  defendant, 
was  improperly  refused,  though  the  court  instructed  in  a  gen- 
eral way  that  plaintiff  could  not  recover  if  defendant  had  with- 


788  AMERICAN   LAW   REAL  ESTATE   AGENCY. 

drawn  authority  to  sell.    Taylor  v.  Read  (Tex.  Civ.  App.  '08), 
113  S.  W.  191. 

Sec.  987.  Instruction  that  delegated  authority  can  not  be 
re-delegated,  misleading  and  erroneous. 

"Where  a  land  owner  authorized  a  person  to  write  to  an  agent 
authorizing  him  to  sell  real  estate,  which  the  agent  does  pur- 
suant to  the  letter  so  written,  after  which  the  land  owner  dis- 
putes his  authority  to  sell,  an  instruction  that  a  delegated  author- 
ity to  an  agent  to  sell  real  estate  can  not  be  re-delegated,  is 
misleading  and  erroneous.  Gross  v.  Schafer,  29  Kan.  442.  See 
Sec.  5  for  acts  which  can  not  be  sub-delegated. 

Sec.  987a.  Prejudicial  error  in  charge  to  jury  recalled  for 
further  instructions. 

An  instruction,  in  an  action  for  a  broker's  commissions,  after 
the  jury  had  been  recalled,  and  had  announced  that  they  were 
not  likely  to  agree  upon  a  verdict,  that  such  trials  were  costly 
to  the  county,  that  if  results  are  not  reached  people  lose  faith 
in  the  ability  of  the  courts  to  deliver  justice;  that  the  single 
question  in  the  case,  which  could  be  solved  readily,  was  whether 
plaintiff,  by  his  sub-agent,  procured  a  customer,  and  whether 
the  parties  dealt,  that  if  so,  plaintiff  was  entitled  to  his  com- 
missions; and  that  the  case  was  the  simplest  ever  presented 
to  ,a  jury,  was  prejudicial  error,  as  in  fact  directing  a  ver- 
dict for  plaintiff,  though  the  court  had  previously  instructed 
that  before  the  plaintiff  could  recover  he  must  prove  by  a 
fair  preponderance  of  the  evidence  that  defendant  contracted 
with  him,  or  that  she  authorized  her  husband  to  do  so,  etc. 
Ebert  v.  WUcox,  155  Mich.  69,  118  N.  W.  735,  15  D.  L.  N.  967. 

Sec.  988.  It  was  error  to  refuse  instruction  that  plaintiff's 
employment  to  procure  a  tenant  was  revoked  by  inter- 
view. 

Where,  in  an  action  for  a  broker's  commissions  in  negotiat- 
ing a  hotel  lease,  the  court  charged  that  the  jury  could  find 
for  the  plaintiff,  either  if  plaintiff's  agency  had  been  revoked 
or  if  the  revocation  was  made  in  bad  faith,  the  refusal  of  cer- 
tain instructions,  "that  under  the  evidence  plaintiff's  em- 
ployment to  procure  a  tenant  was  revoked  by  what  took  place 


PLEADINGS,  PRACTICE,  ETC.  789 

in  a  certain  interview  between  plaintiff  and  defendant,"  could 
not  be  sustained  on  the  theory  that  a  revocation,  if  in  fraud 
of  plaintiff's  rights,  would  not  amount  to  a  revocation.  Cadi- 
gan  v.  Crdbtree,  192  Mass.  230,  78  N.  E.  412.  Compare  Sec.  22. 

Sec.  989.    Instruction  to  find  for  defendant  on  one  state  of 
facts,  for  plaintiff  on  another,  not  inconsistent. 

An  instruction,  in  an  action  by  a  real  estate  agent  for  com- 
missions, to  find  for  defendant  if  he  employed  plaintiff  to 
sell  his  land  and  agreed  to  pay  him  a  commission,  and  subse- 
quently and  before  the  purchaser  had  been  produced  to  defend- 
ant, or  a  written  contract  secured  by  plaintiff  for  a  sale,  de- 
fendant notified  him  that  he  would,  three  days  later,  take  the 
land  from  his  list,  and  that  he  never  made  any  further  effort 
to  sell;  and  an  instruction  to  find  for  plaintiff,  if  defendant 
agreed  to  pay  him  a  commission  for  selling  his  land,  and  plain- 
tiff, as  his  agent,  made  a  verbal  contract  with  E.  to  sell  him 
the  land  on  the  stipulated  terms,  and  a  month  later  E.  made 
a  written  contract  with  plaintiff  to  buy  the  land  on  such 
terms,  and  E.  was  financially  able  to  execute  such  contract, 
though  in  the  time  between  the  making  of  the  verbal  and 
written  contracts  defendant  notified  plaintiff  he  had  termin- 
ated his  agency,  are  not  inconsistent,  and  both  are  correct. 
Kesterson  v.  Ckeuvront  (Mo.  App.  '02),  70  S.  W.  1091;  Wein- 
man v.  Spencer  (Tex.  C.  A.  '09),  124  S.  W.  209;  Benton  v. 
Brown  (Iowa  Sup.  '10),  124  N.  W.  815. 

Sec.  990.    Instruction  to  find  for  defendant  if  plaintiff  aban- 
doned employment,  did  not  harm  defendant. 

In  an  action  by  a  real  estate  agent  for  commissions,  in  which 
it  was  claimed  that  plaintiff  had  abandoned  his  agency,  an 
instruction  that  if  the  jury  believed  ,he  had  abandoned  the 
agency  he  could  not  recover,  though  faulty  for  failure  to  state 
the  specific  facts  alleged  to  constitute  the  abandonment,  could 
not  have  harmed  defendant.  McCormack  v.  Henderson,  100 
Mo.  App.  647,  75  S.  W.  171. 

Sec.  990a.    Charge  held  not  to  require  a  verdict  for  defendant. 

The  evidence  being  conflicting  as  to  whether  the  property 
was  withdrawn  from  the  market  before  or  after  the  owner's 


790  AMERICAN  LAW  REAL  ESTATE   AGENCY. 

employment  of  the  broker,  a  charge,  in  the  broker's  action  for 
compensation,  that  if,  before  the  broker  submitted  the  prop- 
erty for  sale  to  a  prospective  purchaser,  the  owner  had  re- 
fused the  offer  of  the  prospective  purchaser,  defendant  should 
recover,  did  not  require  a  verdict  for  defendant.  Brady  v. 
Maddox  (Tex.  C.  A.  '09),  124  S.  W.  739. 

Sec.  990b.     Charge  interpreted  not  to  require  the  jury  to 

ignore  the  special  charges. 

A  general  charge  that  the  jury  should  find  a  verdict  upon 
a  preponderance  of  the  evidence,  under  the  foregoing  charge, 
followed  by  defendant's  special  charges,  was  not  erroneous  as 
requiring  the  jury  to  find  a  verdict  under  the  general  charge 
alone,  and  to  ignore  the  special  charges,  since  the  jury  could 
not  have  understood  that  after  the  special  charges  were  given 
they  were  to  be  ignored.  Brady  v.  Maddox  (Tex.  Civ.  App. 
'09),  124  S.  W.  739. 

Sec.  991.    Instruction  that  broker  only  required  to  find  pur- 
chaser if  land  had  average  quantity  of  timber,  erroneous. 

"Where  in  an  action  for  a  broker's  services  in  the  selling 
of  timber  land,  a  letter  written  by  defendant  was  silent  as  to 
an  "average  quantity"  of  timber,  certain  instructions  charg- 
ing that  defendant's  proposition  contained  in  such  letter  only 
required  plaintiff  to  secure  a  purchaser  of  all  land  if  it  con- 
tained an  average  quantity  of  timber,  were  erroneous.  Veatch 
v.  Norman,  109  Mo.  App.  387,  84  S.  W.  350. 

Sec.  992.    Instruction  that  if  defendant  made  promise  verdict 
should  be  for  plaintiff,  correct. 

Where  plaintiff  seeks  to  recover  $1,000  for  making  a  sale, 
on  the  ground  that  there  was  a  special  contract  therefor,  there 
is  no  error  in  charging  that  if  defendant  made  the  promise, 
the  verdict  should  be  for  plaintiff,  there  being  no  request  for 
an  instruction  on  the  want  of  consideration,  and  defendant's 
testimony  that,  at  the  time  of  the  sale,  and  before  as  well  as 
afterwards  plaintiff  was  in  his  employ,  and  whatever  services  he 
rendered,  including  any  he  may  have  rendered  in  connec- 
tion with  the  sale,  were  within  the  scope  of  his  said  employ- 


PLEADINGS,  PRACTICE,  ETC.  791 

ment,  and  any  such  special  contract  was  without  consideration, 
being  too  vague  and  uncertain  to  warrant  a  finding  that  the 
special  services  were  within  the  scope  of  any  contract  between 
them  other  than  that  sued  on.  Keyser  v.  Reilly,  191  Pa.  St.  271, 
43  A.  317,  44  Weekly  N.  C.  240. 

Sec.  993.    Instruction  that  agent  through  whose  effort  buyer 
found  entitled  to  commission,  inapplicable  to  proof. 

In  an  action  by  a  broker  for  commissions,  where  there  was 
no  evidence  that  defendant  had  employed  others  to  make  a 
sale  of  the  property,  an  instruction  that  the  agent,  through 
whose  efforts  a  purchaser  was  found,  is  alone  entitled  to  the 
commissions,  though  legally  correct,  was  erroneous  as  inappli- 
cable to  the  proof.  Leech  v.  demons,  14  Colo.  App.  45,  59  P. 
230. 

Sec.   994.    Instruction  authorizing  finding  against  plaintiff, 

though  procuring  cause  of  sale,  erroneous. 
In  an  action  for  the  commissions  of  a  real  estate  broker,  in- 
structions that  if  plaintiff  and  another  broker  both  had  the 
premises  for  sale,  and  the  other  first  directed  the  purchaser's 
attention  to  the  property,  and  first  visited  the  property  with 
him,  he  was  entitled  to  the  commissions,  though  plaintiff  af- 
terwards took  the  purchaser  to  the  property  and  introduced 
him  to  the  owner,  were  erroneous,  because  authorizing  a  find- 
ing against  plaintiff,  though  he  was  the  procuring  cause  of 
sale,  and  as  such  entitled  to  compensation.  Bowser  v.  Mick, 
29  Ind.  App.  49,  62  N.  E.  513. 

Sec.  994a.    Instruction  erroneous  which  disregards  who  was 

the  procuring  cause  of  the  sale. 

"Where,  in  an  action  by  a  real  estate  broker  for  commissions, 
the  issues  involved  the  question  whether  the  efforts  of  the  bro- 
ker were  the  procuring  cause  of  the  sale,  an  instruction  au- 
thorizing a  recovery  on  a  finding  that  the  broker  was  employed 
to  procure  a  purchaser  and  introduced  a  customer  to  the  owner 
to  whom  a  sale  was  subsequently  made,  without  requiring  a 
finding  that  the  broker  was  the  procuring  cause  of  the  sale 
was  erroneous.  Rnssell  v.  Poor  (Mo.  App.  '08),  115  S.  W.  1. 


792  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  995.  Instruction  held  inconsistent  with  another  that  con- 
tract had  been  ratified. 

In  an  action  by  a  real  estate  broker  for  commissions,  a  charge 
that  if  the  purchasers  were  accepted  by  defendant  as  satis- 
factory, the  verdict  should  be  for  plaintiff,  but,  if  not,  to  au- 
thorize a  recovery  it  must  be  shown  that  the  purchasers  were 
ready,  willing  and  able  to  perform  their  part  of  the  contract, 
within  a  reasonable  time  from  that  named  therein,  was  incon- 
sistent with  another  charge  that  the  contract  had  been  ratified 
and  confirmed  by  defendant  and  was  binding  on  him.  Flynn 
v.  Jordal,  124  Iowa,  457,  100  N.  W.  326. 

Sec.  996.  Instruction  that  if  plaintiff  materially  altered  con- 
tract, without  defendant's  knowledge,  it  would  not  bind 
him,  not  objectionable. 

In  an  action  for  a  broker's  commissions,  an  instruction  that 
the  sale  contract  contained  the  terms  of  the  sale  and  plain- 
tiff's authority,  and  that  he  had  no  right  to  sell  the  land  on 
any  other  terms,  and  if  he  changed  the  contract,  without  de- 
fendant's knowledge  or  consent,  by  striking  out  the  rate  of 
interest  to  be  paid,  it  was  a  material  alteration,  and  would  not 
bind  defendant,  nor  entitle  plaintiff  to  recover  his  commissions, 
was  not  objectionable,  in  that  it  omitted  to  charge  that,  if 
plaintiff  made  the  change  in  good  faith,  believing  that  it  was 
in  accordance  with  the  understanding  of  the  parties,  there  was 
no  fraud.  Robertson  v.  Vasey,  125  Iowa,  526,  101  N.  W.  271. 
See  also  Sec.  969.  Compare  Sec.  485. 

Sec.  997.  Instruction  that  where  owner  knew,  he  is  not  bound 
to  decide  which  was  procuring  cause,  properly  refused. 

An  instruction  that  an  employer  of  two  or  more  real  estate 
brokers  may  make  a  sale  to  the  buyer  produced  by  either  of 
them,  and  is  not  bound  to  decide  which  of  them  is  the  primary 
cause  of  the  purchase,  is  properly  refused,  where  the  evidence 
shows  that  the  employer  of  two  brokers,  sued  by  one  of  them, 
had  full  notice  that  he  was  the  procuring  cause  of  the  sale. 
Eggleston  v.  Austin,  27  Kan.  245. 


PLEADINGS,  PRACTICE,  ETC.  793 

Sec.  998.  Instruction  that  plaintiff  not  entitled  to  recover 
unless  he  sold  at  price  fixed,  correct. 

In  an  action  to  recover  commissions  for  selling  land,  in  which 
defendants  pleaded  in  their  answer  that  the  contract  was  that 
plaintiff  was  to  sell  the  land  and  have  a  commission  of 
one  and  one-half  per  cent,  if  he  sold  it  at  $90  per  acre,  and 
that  they  had  taken  the  land  out  of  the  hands  of  plaintiff  for 
sale  and  sold  it  themselves,  they  can  not  complain  of  an  in- 
struction to  the  jury  to  find  for  them,  if  the  jury  believed 
that  the  only  contract  was  that  if  plaintiff  would  sell  the 
land  for  defendant  at  the  price  of  $90  per  acre  defendants 
would  pay  one  and  one-half  per  cent,  commissions,  and  that 
plaintiff  failed  to  sell  the  land,  or  find  a  buyer  therefor  at  that 
price.  Prewitt  v.  West,  22  Ky.  L.  E.  492,  55  S.  W.  884.  See 
also  Sec.  307. 

Sec.  999.  Instruction,  if  defendant  not  requested  to  furnish 
abstract  of  title,  plaintiff  not  entitled  to  recover,  properly 
refused. 

In  an  action  by  a  broker  for  commissions  for  finding  a  pur- 
chaser for  defendant's  land,  plaintiff  claimed  that  defendant 
had  been  required  to  give  an  abstract  of  title,  which  he  had 
not  done,  hence  defeating  the  sale;  defendant  denied  that  he 
had  been  "requested;"  but  his  evidence  showed  that  the  ab- 
strSfct  "had  been  required,"  and  the  contract  with  the  broker 
provided  that  "if  required,"  an  abstract  should  be  furnished. 
Held,  that  defendant  could  not  complain  of  the  refusal  of  an 
instruction  that,  if  defendant  was  not  requested  to  furnish  an 
abstract,  plaintiff  was  not  entitled  to  recover.  Bruce  v.  Wolfe, 
102  Mo.  App.  384,  76  S.  W.  723. 

Sec.  1000.  Instruction  erroneous  in  eliminating  question  of 
connection  between  the  transactions. 

Where,  in  an  action  for  a  broker's  services,  plaintiff  claimed 
that  the  defendant  agreed  to  pay  him  $1,000,000  in  case  he 
purchased  a  railroad  which  plaintiff  was  endeavoring  to  sell, 
or  became  interested  therein,  and  plaintiff  claimed  that  there- 
after defendant  did  become  interested  by  participating  in  a 


794  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

syndicate  by  which  such  railroaa  was  consolidated  with  another, 
an  instruction  that  plaintiff's  contention  was  that  defendant 
agreed  to  pay  $1,000,000  if  he  went  in  with  any  one  else  in 
the  purchase  of  the  property,  and  that  when  he  participated 
in  the  syndicate,  "he  did  go  in  with  somebody  else,  and  there- 
fore became  indebted  to  him  in  the  sum  of  $1,000,000,"  was 
erroneous,  in  eliminating  the  question  whether  there  was  any 
connection  between  the  transaction  with  the  defendant  and  the 
purchase  of  the  road  by  the  syndicate  of  which  he  afterwards 
became  a  member.  Hingis  v.  Fitzgerald,  95  N.  Y.  S.  436,  108 
App.  Div.  24. 

Sec.  1001.    Instruction  erroneous,  which  confines  to  one  inter- 
pretation, where  terms  of  contract  are  in  dispute. 

Where  the  contract  between  the  broker  and  his  principal  is 
oral,  and  its  terms  are  in  dispute,  it  is  error  to  instruct  the 
jury,  that  if  the  plaintiff  brought  the  purchaser  to  the  notice 
of  the  seller  he  is  entitled  to  commissions,  and  that  that  was 
the  only  question  for  them  to  determine,  unless,  under  the  only 
reasonable  interpretation  of  which  the  language  of  the  parties 
was  susceptible,  in  the  light  of  the  circumstances,  that  was  all 
he  was  required  to  do  to  earn  the  commissions.  Henderson  v. 
Sonneborn,  30  Pa.  Sup.  Ct.  182. 

Sec.  lOOla.    Erroneous  qualification  in  charge  to  jury. 

In  an  action  by  a  broker  for  commissions  on  a  sale  of  land, 
it  was  error  to  qualify  an  instruction  that  plaintiff  could  not 
recover  if  he  was  acting  for  both  parties,  by  the  statement: 
"Unless  his  double  employment  was  understood,"  without  stat- 
ing, that  it  must  appear  the  buyer  knew,  or  had  been  informed 
by  plaintiff  of  his  relation  to  defendant;  since  the  jury  might 
have  inferred  that  even  if  defendant  knew  plaintiff  was  the 
agent  of  the  buyer,  and  unless  plaintiff  fraudulently  induced 
him  to  believe  that  he  was  serving  only  in  his  interest,  the  fail- 
ure to  disclose  to  the  buyer  the  employment  by  defendant 
would  not  bar  recovery.  Sullivan  v.  Tufts  (Mass.  Sup.  '09), 
89  N.  E.  239. 


PLEADINGS,  PRACTICE,  ETC.  795 

Sec.  1002.  Instruction  that  contract  was  invalid,  misleading 
and  prejudicial. 

Plaintiff  claimed  that  defendant  had  promised  to  pay  a  cer- 
tain sum  on  his  procuring  a  contract  for  the  sale  of  his  land, 
and  that  he  had  done  so;  defendant  contended  that  he  had  so 
promised,  provided  the  sale,  as  agreed  on,  should  be  consummated. 
Held,  that  the  question  whether  the  contract  of  sale  could  be 
legally  enforced  was  immaterial,  under  the  issues,  and  an  instruc- 
tion that  it  was  invalid  was  misleading  and  prejudicial.  Baird  v. 
GlecUer,  11  S.  D.  233,  76  N.  W.  931. 

Sec.  1002a.  Where  broker's  efforts  induced  sale  where  pre- 
vious efforts  of  owner  failed,  charge  by  owner  that,  to  re- 
cover, broker  must  have  procured  purchaser  properly,  re- 
fused as  misleading. 

In  an  action  to  recover  real  estate  commissions  for  a  sale  al- 
leged to  have  been  made  by  the  owner  as  a  result  of  the  plain- 
tiff's efforts,  following  alleged  promise  by  the  owner  to  pay  the 
plaintiff  such  commission,  after  the  owner  had  failed  to  effect  a 
sale  to  such  purchaser  with  whom  he  had  originally  negotiated, 
without  any  introduction  by  the  plaintiff,  an  instruction  making 
it  essential  to  a  recovery  that  the  purchaser  should  have  been 
originally  procured  by  the  plaintiff;  held,  properly  refused  as 
misleading.  O'Connor  v.  Kennedy,  200  111.  App.  426. 

Instruction  that  plaintiff  "is  entitled  to  recover  if  he  was  in- 
strumental in  bringing  the  buyer  and  seller  together;"  held  cor- 
rect, and  not  open  to  the  objection  that  the  jury  might  have  in- 
ferred that  it  meant  a  mere  physical  bringing  together.  Id. 

Sec.  1003.  Erroneous  instruction  not  cured  by  requiring  a 
finding  that  a  contract  still  existed. 

Where  a  broker's  contract  for  services  required  a  sale  of 
nineteen  quarter-sections  of  land  within  thirty  days,  at  $9  per 
acre,  the  broker  to  receive  one  dollar  per  acre  commission,  an 
instruction,  in  an  action  for  commissions  on  the  contract,  that 
if  the  jury  found  that  plaintiff  procured  a  purchaser  for  all 
the  land  within  the  time,  who  was  able,  ready  and  willing  to 
purchase,  then  plaintiff  was  entitled  to  recover  the  amount 


796  AMERICAN   LAW   EEAL   ESTATE  AGENCY. 

claimed,  though  only  sixteen  quarter-sections  were  sold  to  the 
procured  purchaser,  and  by  the  owner  himself,  for  a  less  sum 
than  the  price  fixed  in  the  contract,  was  not  cured  by  a  pro- 
viso requiring  the  jury  to  find  that  at  the  time  the  sale  was 
finally  consummated  there  still  existed  a  contract  between  plain- 
tiff and  defendant  to  pay  one  dollar  per  acre  commissions. 
Ball  v.  Dolan,  18  S.  D.  558,  101  N.  W.  719. 

Sec.  1004.    Where  agent  testified  owner  agreed  to  all  sales,  it 
was  error  to  instruct  for  defendant  as  to  any. 

Where  an  agent  testified  that  the  owner  agreed  to  the  prices 
at  which  he  sold  the  different  tracts,  it  would  be  error  to  in- 
struct the  jury  to  find  for  the  defendant  as  to  any  of  the  tracts. 
McLane  v.  Goode  (Tex.  Civ.  App.  '02),  68  S.  W.  707. 

Sec.  1005.    Instruction  proper,  that  if  plaintiff  aided  and  as- 
sisted in  sale  of  railway,  defendant  was  liable. 

In  an  action  to  recover  for  services  in  promoting  the  sale  of  a 
street  railway,  it  was  proper  to  instruct  the  jury  that  defend- 
ant was  liable  if  they  found  that  plaintiff  aided  and  assisted  in 
the  negotiations  with  the  prospective  vendee,  where  this  was 
the  gist  of  the  undertaking  sued  on.  Alexander  v.  Wakefield 
(Tex.  Civ.  App.  '02),  69  S.  W.  77. 

Sec.  1005a.    Instruction  defining  word  "solicit"  upheld. 

An  instruction  in  an  action  for  commissions  as  sales  agent, 
that  the  word  "solicit,"  as  used  in  the  contract,  meant  to 
seek  for,  and  that  it  was  incumbent  upon  plaintiff  to  show 
that  he  endeavored  to  obtain  purchasers  for  defendant,  per- 
sons who,  in  fact,  did  purchase;  that  it  was  not  necessary  for 
plaintiff  to  show  that  the  purchasers  made  the  trip  solely  upon 
his  solicitation,  but  that  if  the  sale  was  made  to  them  on  ac- 
count of  former  dealings  of  defendant  with  them,  through 
plaintiff's  agency  at  the  place  where  plaintiff  resided,  and  that 
plaintiff  aided  and  assisted  in  bringing  them  together,  and 
encouraged  and  endeavored  to  induce  the  purchasers  to  make 
the  trip,  this  would  be  a  solicitation  by  plaintiff,  entitling  him 
to  commissions  on  the  sale,  imposed  upon  plaintiff  every  bur- 


PLEADINGS,  PRACTICE,  ETC.  797 

den  resting  upon  him  to  entitle   him  to   recover.     Curlee  v. 
Reeves  (Neb.  Sup.  '09),  123  N.  W.  420. 

Sec.  1006.    Instruction  for  plaintiff  erroneous,  where  the  evi- 
dence is  conflicting. 

In  an  action  for  services  rendered  in  purchasing  property 
where  there  was  a  conflict  in  the  evidence  as  to  whether  or 
not  plaintiff  had  performed  the  services  which  he  was  em- 
ployed to  perform,  a  charge  authorizing  a  recovery  for  plain- 
tiff, without  requiring  the  jury  to  find  that  he  had  performed 
the  stipulated  services,  was  erroneous.  St.  Louis,  S.  W.  P.  Co. 
of  Texas  v.  Irvine  (Tex.  Civ.  App.  '05),  89  S.  W.  428;  Trees 
v.  Milliken  (Ind.  App.  '08),  85  N.  E.  123. 

Sec.  1007.    Instruction  erroneous  which  leaves  the  jury  to  de- 
termine what  constitutes  a  valuable  consideration. 

Plaintiff,  as  broker,  sold  a  ranch  for  defendant,  a  farm 
being  taken  in  exchange  for  part  of  the  price;  defendant  re- 
fused to  pay  any  commissions  on  the  value  of  the  farm;  after 
the  sale  of  the  farm  plaintiff  sued  for  commissions  thereon, 
claiming  that  he  had  accepted  the  settlement  as  to  commis- 
sions on  the  sale  of  the  ranch,  on  an  agreement  for  a  commis- 
sion on  the  sale  of  the  farm;  defendant  claimed  that,  while 
he  had  authorized  plaintiff  to  assist  in  selling  the  farm,  it 
iwas  sold  by  defendant  himself;  the  court  instructed  that  if  a 
contract  for  commissions  on  a  sale  of  the  farm  was  made  for 
a  "valuable  consideration,"  and  plaintiff  complied  with  his 
contract,  and  the  farm  was  sold  "at  a  price  and  upon  terms 
acceptable  to  defendant,"  plaintiff  was  entitled  to  recover, 
and  refused  to  instruct  that  "if  defendant  failed  to  pay  all 
the  commissions  for  the  sale  and  exchange  of  the  ranch,  and 
the  parties  agreed  in  lieu  thereof,  he  was  to  have  a  commis- 
sion on  the  sale  of  the  farm,"  etc..  "plaintiff  was  entitled  to 
recover."  Held,  that  there  was  error  in  the  giving  and  re- 
fusing of  the  instructions,  the  jury  having  been  left  to  deter- 
mine what  would  be  a  valuable  consideration,  and  the  words 
"at  a  price  and  on  terms  acceptable  to  defendant"  being  su- 
perfluous and  probably  misleading.  Harrison  v.  Houston  (Tex. 
Civ.  App.  '06),  91  S.  W.  647. 


798  AMERICAN   LAW   REAL  ESTATE   AGENCY. 

Sec.  1008.    Instruction  properly  refused  which  ignored  plain- 
tiff's theory  of  cause  of  sale. 

In  an  action  by  a  real  estate  broker  for  his  commissions  in 
securing  a  purchaser,  an  instruction  is  properly  refused  which 
ignores  plaintiff's  theory  that  the  efficient  cause  of  the  sale 
was  the  vendor's  representative  acting  with  him  and  accepting 
his  services,  with  knowledge  of  his  occupation,  although  such 
representative  may  have  acted  with  other  agents  in  some  mat- 
ters respecting  the  sale.  /.  P.  Watkins  Land  &  Mtg.  Co.  v. 
Thetford  (Tex.  Civ.  App.  '06),  96  S.  W.  72. 

Sec.  1009.    Instruction  properly  refused  that  broker  to  earn 

commissions  must  notify  his  principal. 

Where,  in  an  action  for  a  division  of  a  broker's  commissions, 
the  contract  between  the  parties  provided  that  if  plaintiff  would 
"assist"  in  obtaining  a  purchaser  he  should  be  entitled  to  one- 
half  the  commissions  earned,  an  instruction  that  unless  the 
person  claiming  the  commissions  find  such  purchaser  and  com- 
municate the  fact  to  the  other  party  at  the  time,  he  can  not 
recover,  was  properly  refused.  McCleary  v.  Willis,  35  Wash. 
676,  77  P.  1073.  See  also  Sec.  799. 

Sec.  1009a.    Failure  to  instruct  as  to  notice  held  not  error. 

In  an  action  for  a  commission  on  a  sale  of  land,  an  offer  to 
show  that  there  was  a  supplemental  contract,  and  that  by  an 
oversight,  mistake  or  fraud,  a  stipulation  that  plaintiff's  right 
to  sell  the  land  should  expire  at  a  time  which  had  passed,  was 
omitted  from  the  writing,  contains  no  offer  to  prove  notice  of 
revocation  of  plaintiff's  right,  and  a  failure  to  instruct  as  to 
what  constitutes  such  notice  is  not  error.  Hoffner  v.  Cham- 
bers, 121  Pa.  St.  84,  15  A.  492. 

Sec.  1010.    Instruction  erroneous  that  commission  was  not  to 
be  paid  unless  sale  consummated. 

In  an  action  by  a  real  estate  broker  for  commissions,  it  ap- 
peared that  the  owner  authorized  plaintiff  to  sell  certain  real 
estate  for  $41,000,  agreeing  to  pay  a  commission;  plaintiff 
claimed  the  making  of  a  verbal  modification  to  the  effect  that 
he  should  receive  the  commission,  without  regard  to  price,  which 
modification  is  denied;  a  contract  was  introduced  in  evidence 


PLEADINGS,   PRACTICE,   ETC.  799 

between  the  owner  and  another  for  a  sale  for  $40,000,  but  it 
was  claimed  that  certain  interlineations  in  the  contract  were 
made  after  it  had  been  signed  by  the  owner,  and  that  he  never 
agreed  to  it  in  its  altered  condition;  there  was  also  evidence 
that  plaintiff  procured  a  purchaser  for  $42,000,  but  the  owner 
refused  to  perform.  Held,  that  it  was  error  to  instruct  that  the 
commission  was  not  to  be  paid  unless  the  sale  was  consum- 
mated, and  that  the  risk  of  failure  was  wholly  on  the  broker. 
Bruce  v.  Hurlbut,  81  N.  Y.  S.  54,  81  App.  Div.  311.  See  also 
Sec.  969. 

Sec.  1011.  Instruction  that  if  broker  changed  contract  believ- 
ing defendant  would  see  before  signing,  not  prejudicial 
to  plaintiff. 

In  an  action  for  broker's  commissions,  an  instruction  that 
if  the  broker  caused  a  change  to  be  made  in  the  contract,  be- 
lieving that  defendant  would  see  the  change  when  the  contract 
was  delivered  to  him,  then  the  defense  of  fraud  on  the  part 
of  the  broker  in  so  changing  the  contract  was  not  sufficiently 
established  to  defeat  plaintiff's  claim  for  commissions,  was  not 
prejudicial  to  plaintiff.  Robertson  v.  Vasey,  125  Iowa,  526, 
101  N.  W.  271. 

Sec.  1012.    Instruction  that  to  entitle  him  to  commissions- the 

broker  must  have  acted  in  good  faith,  is  proper. 
Where  the  evidence  tended  to  show  an  interest  on  the  part 
of  a  real  estate  broker  in  the  contract  of  purchase,  an  instruc- 
tion that  to  entitle  him  to  commissions  he  must  have  acted 
in  good  faith  and  in  the  interest  of  his  employer.  Held,  not 
erroneous.  Buck  v.  Hogeboom,  125  Neb.  526,  90  N.  W.  635. 

Sec.  1013.    Instruction,  in  answer  to  question  by  foreman,  that 

jury  not  bound  by  any  rule  in  fixing  damages,  error. 
In  'an  action  by  a  real  estate  broker  for  commissions,  it  was 
error  to  tell  the  jury,  in  answer  to  a  question  by  their  fore- 
man, that  they  were  not  bound  by  any  rule  in  fixing  damages, 
as  the  court  should  have  charged  them  that  the  rule  was  the 
customary  commissions  in  such  cases,  or,  if  the  evidence  was 
insufficient  on  that  question,  what  would  be  a  fair  compensa- 


800  AMERICAN   LAW   EEAL  ESTATE   AGENCY. 

tion.    Hartman  v.  Warner,  75  Conn.  197,  52  A.  719.     See  Sec. 
300. 

Sec.  1014.    Instruction  proper,  that  if  plaintiff  entitled  to 
commissions,  jury  should  determine  their  value. 

In  an  action  for  a  broker's  services,  it  was  proved  that  the 
value  of  plaintiff's  services  for  furnishing  a  purchaser  of  the 
land  was  one  dollar  per  acre,  and  that  it  was  worth  the  same 
for  "selling;"  defendant's  answer  admitted  plaintiff's  services 
in  "selling"  the  land,  and  the  case  was  tried  on  the  theory 
that  the  services  in  "selling"  or  "furnishing  a  purchaser" 
were  the  same.  Held,  that  the  court  did  not  err  in  charging 
that,  if  the  jury  found  the  plaintiff  was  entitled  to  a  com- 
mission for  services  in  "selling"  the  land,  it  should  determine 
the  value  thereof.  Wallick  v.  Lynch  (Iowa  Sup.  '06),  106  N. 
W.  617. 

Sec.  1015.    Instruction  rightly  refused,  that  if  entitled  to  any- 
thing broker  confined  to  a  quantum  meruit. 

In  an  action  for  services  as  a  broker  in  procuring  defend- 
ant a  contract  to  purchase  land,  a  request  for  a  ruling  that 
the  plaintiff  could  not  recover  more  than  a  quantum  meruit  for 
his  services  as  a  broker,  if  entitled  to  recover  anything,  was 
held  rightly  refused,  as  it  assumed  that  plaintiff  had  been 
acting  as  a  broker,  while  the  question  whether  he  had  been  so 
acting  or  not  was  in  issue,  and  as  it  disregarded  the  plaintiff's 
claim  that  there  was  a  special  agreement  'between  the  defend- 
ant and  himself,  of  which  there  was  evidence  for  the  jury. 
Graves  v.  Dill,  159  Mass.  74,  34  N.  E.  336. 

Sec.  1015a.    Instruction  held  properly  refused. 

An  instruction  that  a  real  estate  agent  is  not  entitled  to 
recover  for  his  services  if  he  failed  to  accomplish  the  sale, 
and  the  vendee  was  induced  to  reconsider  his  resolution  and 
purchase  by  another  agent,  notwithstanding  the  vendee  might 
never  have  looked  at  the  property  or  thought  of  buying  it  but 
for  plaintiff,  "as  his  agency  was  not  the  immediate  and  effi- 
cient cause  of  the  sale,"  was  properly  refused,  where  there 


PLEADINGS,   PRACTICE,   ETC.  801 

was  no  evidence  that  another  agent  was  instrumental  in  ef- 
fecting the  sale,  and  also,  because  the  jury  were  likely  to  mis- 
understand the  last  clause,  and  regard  it  as  an  independent 
part  of  the  instruction.  Solomon  v.  Cress,  29  P.  439,  22  Or.  177. 

Sec.  1016.    Instruction  authorizing  recovery  upon  either  of  two 

hypotheses,  not  in  conflict. 

In  an  action  for  a  broker's  commissions  against  stockhold- 
ers of  a  brewing  company  for  a  sale  of  its  property,  where 
the  evidence  showed  that  the  debts  of  the  company  were  about 
$30,000,  that  the  purchasers  assumed  this  indebtedness,  reliev- 
ing defendants  from  any  liability  thereon,  and  that  by  the 
written  contract  of  sale  the  purchasers  relieved  defendants  of 
all  personal  liability  on  the  obligations  of  the  company,  not 
to  exceed  $30,000,  there  was  no  conflict  between  instructions 
authorizing  a  recovery  of  ten  per  cent,  of  the  debts  of  the  com- 
pany from  which  the  defendants  were  to  be  relieved  as  sure- 
ties, and  one  authorizing  a  recovery  of  ten  per  cent,  of  the 
debts  of  every  kind  of  the  company.  Morgan  v.  Keller,  194 
Mo.  663,  92  S.  W.  75. 

Sec.  1017.  Instruction  proper,  where  some  sales  are  admitted, 
to  award  commissions,  though  no  contract  be  proved. 

"Where  plaintiff  alleged  a  contract  for  commissions  and  sales 
made  thereunder,  and  defendant  denied  the  contract,  but  ad- 
mitted some  of  the  sales  and  that  he  was  indebted  to  plaintiff 
in  a  reasonable  sum  for  commissions  thereon,  an  instruction 
that,  if  the  jury  did  not  find  that  there  was  a  contract,  then 
they  should  award  plaintiff  reasonable  commissions,  was  proper, 
such  issue  being  raised  by  defendant.  Wheeler  v.  Buck,  23 
Wash.  679,  63  P.  566. 

Sec.  1018.  Instruction  that  if  sales  were  made  within  con- 
tract to  pay  commissions  to  plaintiff,  is  sufficiently 
definite. 

In  an  action  for  a  broker's  commissions,  the  court's  charge, 
that  if  the  purchasers  went  to  South  Dakota,  by  reason  of 


800  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

plaintiff's  introduction  to  defendant,  and  examined  the  lands 
defendant  had  for  sale,  and  if  defendant  participated  in  the 
business  resulting  in  sales,  then  the  sales  were  made  by  defend- 
ant within  his  contract  to  pay  to  plaintiff,  was  a  sufficiently 
definite  instruction  on  the  issue,  of  the  manner  in  which  de- 
fendant must  have  sold  the  land  in  order  to  render  himself 
liable.  Murphy  v.  Hiltbridle,  132  Iowa,  114,  109  N.  W.  471. 


Sec.  1019.    Instruction  erroneous,  as  question  of  broker's  au- 
thority was  for  the  jury. 

Where  a  fruit  farm  was  listed  for  sale  with  a  real  estate 
agent,  who,  in  turn,  listed  it  with  another  agent,  and  there 
was  evidence  tending  to  show  authority  of  the  latter  to  make 
representations  relating  to  the  farm,  the  court  should  not  have 
instructed  that  the  owner  was  bound  by  representations  made 
by  him,  but  should  have  submitted  the  question  of  his  authority 
to  the  jury.  Mailer  v.  Jeffries,  145  Mich.  598,  108  N.  W.  994, 
13  D.  L.  N.  600. 

Sec.  1019a.    Instruction  erroneous  that  invades  the  province  of 
the  jury. 

An  instruction  in  an  action  for  commissions  for  selling  land 
selecting  language  that  the  parties  used,  that  might  be  evidence 
of  the  annulment  of  a  contract,  and  informing  the  jury  of  its 
probative  effect,  would  have  been  on  the  weight  of  the  evidence, 
and  an  invasion  of  the  province  of  the  jury.  Mumme  v.  Gates 
(Tex.  Civ.  App.  '09),  120  S.  W.  1046. 


PLEADINGS,  PRACTICE,  ETC. 


803 


Sec.  1020.    Instruction  where  contract  was  for  sale  to  certain 
party,  which  failed,  plaintiff  could  not  recover. 

There  being  evidence  that  defendant  only  contracted  with 
plaintiff  with  reference  to  a  sale  to  a  certain  party,  which  sale 
fell  through,  defendant  was  entitled  to  a  charge  that  plaintiff 
could  not  recover  if  the  contract  was  so  limited.  Wefel  v. 
Stillman,  151  Ala.  249,  44  S.  203. 

Sec.  1021    Instruction  erroneous,  which  relied  on  usage,  in 
not  requiring  the  jury  to  find  the  existence  thereof. 

In  an  action  by  a  real  estate  broker  for  commissions  for  sell- 
ing a  leasehold,  plaintiff's  prayer  for  an  instruction  which 
relied  on  usage  and  custom  to  fix  the  amount  to  which  he  was 
entitled,  was  erroneous  in  not  requiring  the  jury  to  find  the 
existence  of  a  uniform  and  notorious  custom  regulating  the 
compensation  of  agents  making  sales  of  leaseholds.  Groscup  v. 
Downey,  105  Md.  273,  65  A.  930. 

Sec.  1022.    Instruction  erroneous,  that  because  husband  had 
charge  of  real  estate,  had  authority  to  employ  a  broker. 

In  an  action  for  commissions  for  selling  real  estate,  an  in- 
struction that  if  defendant's  husband  "was  agent  in  charge  of 
said  property,  and  for  the  sale  of  the  same,  and  defendant's 
said  agent  employed  plaintiff"  to  procure  a  purchaser,  and 
the  property  was  sold  by  defendant  to  a  purchaser  procured  by 
plaintiff,  he  was  entitled  to  recover,  was  erroneous,  in  that  it  in 
effect  instructed  the  jury,  as  a  matter  of  law,  that  if  defend- 
ant's husband  was  the  agent  in  charge  of  said  property  and 
for  the  sale  of  the  same,  he  had  authority  to  employ  another 
to  procure  a  purchaser.  Id.  See  also  Sec.  39. 

Sec.  1023.    Instruction  properly  refused,  to  find  for  plaintiff, 

where  liability  of  defendant  was  for  the  jury. 
An  instruction  requested  by  plaintiffs,  in  an  action  by  real 
estate  agents  for  commissions,  that,  though  the  jury  find  it  was 
agreed  between  plaintiffs  and  defendants  that  commissions 
should  not  be  paid  unless  defendants  actually  traded  a  cer- 
tain building  for  a  ranch  controlled  by  plaintiffs  and  passed 
title,  yet  if  they  find  that  it  was  the  act  of  defendants  which 


804  AMERICAN    LAW   HEAL    ESTATE   AGENCY. 

prevented  the  exchange  being  made,  they  should  find  for  plain- 
tiffs, they  having  procured  a  person  ready  and  able  to  make 
such  trade  on  terms  satisfactory  to  defendants,  is  properly  re- 
fused as  misleading,  it  being  conceded  that,  as  between  defend- 
ants and  the  owners  of  the  ranch,  it  was  the  act  of  defendants 
which  prevented  the  exchange  being  made,  and  there  being  evi- 
dence that  the  act  was  compelled  against  the  wishes  of  defend- 
ants by  circumstances  which  they  could  not  avoid,  and  which, 
under  the  contract  of  employment  was  sufficient  to  absolve  them 
from  liability  for  the  commissions.  Eieger  v.  Merrill,  125  Mo. 
App.  541,  102  S.  W.  1072.  See  also  Sec.  125. 

Seo.  1024.    Instruction  to  find  for  one  of  competing  brokers  is 
correct,  even  though  he  did  not  close  the  trade. 

An  instruction,  at  defendant's  request,  in  an  action  to  deter- 
mine which  of  two  real  estate  brokers  was  entitled  to  the  com- 
missions for  selling  land,  that  where  real  estate  was  listed  for 
sale  with  several  real  estate  agents  acting  independently,  the 
one  who  succeeded  in  bringing  about  a  contract  between  the 
seller  and  the  purchaser  was  the  one  who  earned  the  commis- 
sions, regardless  of  the  fact  that  some  other  real  estate  men  may 
have  introduced  the  purchaser  to  the  seller,  if  error,  as  excluding 
the  theory  that  the  broker  who  is  the  procuring  cause  of  the 
sale  is  entitled  to  the  commission,  did  not  constitute  a  reversible 
error,  where  instructions  were  given  in  plaintiff's  behalf,  that  if 
the  purchaser  of  the  land  had  it  first  brought  to  his  notice  by 
plaintiffs,  who,  at  his  solicitation,  disclosed  the  owner's  name, 
and  the  information  received  from  plaintiffs  was  the  primary 
cause  of  the  purchaser  afterward  buying  the  land,  then  plain- 
tiffs were  entitled  to  recover,  even  though  defendants  showed 
the  purchaser  the  land  and  assisted  in  closing  the  trade,  and 
that  if  the  purchaser  promised  plaintiffs  to  take  it,  if  it  suited, 
before  defendants  brought  the  land  to  the  purchaser's  notice, 
and  the  owner  was  notified  by  the  plaintiffs  of  that  fact,  and 
the  defendants  afterwards  took  the  purchaser  to  show  him  the 
land,  then  plaintiffs  were  entitled  to  recover,  even  though  they 
did  not  close  the  trade  for  the  land.  Painter  v.  Ktlgore  (Tex. 
Civ.  App.  '07),  101  S.  W.  809;  Smith  v.  Sharp  (Ala.  Sup.  '09), 
50  S.  381.  See  also  Sec.  446. 


PLEADINGS,  PRACTICE,  ETC.  805 

Sec.  1025.    Instruction  erroneous,  as  to  reservation  in  deed  of 

mineral  deposits. 

Error  in  the  instruction  on  a  contract  to  procure  a  purchaser 
for  defendant's  land,  wherein  plaintiff  contended  that  lie  found 
purchasers  and  that  the  sale  failed  solely  because  of  defendant's 
defective  title,  in  that  the  instruction  was  open  to  a  construction 
that,  from  the  fact  that  the  attorney  for  the  purchasers  saw 
the  deed,  it  was  conclusively  established  that  the  purchasers 
knew  the  reservation  therein  of  marl  mineral  and  gas  deposits, 
was  not  cured  by  undisputed  testimony  that  plaintiff  stated  to 
the  purchasers,  or  one  of  them,  that  defendant  would  reserve 
the  mineral  deposits,  or  by  the  further  instruction  that  plaintiff 
must  prove  that  the  purchasers  knew  about  and  consented  to 
the  reservation.  Weaver  v.  Richards,  150  Mich.  20,  113  N.  "W. 
867,  14  D.  L.  N.  617,  120  N.  W.  818,  16  D.  L.  N.  117. 

Sec.  1026.    Instruction  assuming  absence  of  special  contract 
and  existence  of  custom,  erroneous. 

In  an  action  of  assumpsit  for  brokerage  commissions,  an 
instruction  assuming  the  absence  of  a  special  contract  and 
the  existence  of  an  established  custom  as  to  commissions,  is 
erroneous,  the  fact  of  the  existence  of  such  custom  being  one 
which  should  be  submitted  to  the  jury  under  proper  instructions. 
Cobb  v.  Dunlevie,  63  W.  Va.  398,  60  S.  E.  384. 

Sec.  1027.    Instruction  that  plaintiff  was  employed  to  super- 
vise erroneous,  as  ignoring  the  defense. 

Where  plaintiff,  an  architect,  about  to  supervise  the  erection 
of  a  building,  advised  defendant  to  have  his  adjoining  building 
underpinned  before  excavations  for  the  new  building  began,  and 
thereupon  defendant  agreed  with  a  contractor  that  the  latter, 
for  a  specific  sum  should,  under  plaintiff's  supervision,  underpin 
defendant's  wall,  and  defendant  and  a  witness  testified  that 
the  specified  sum  wTas  to  cover  the  entire  cost  of  the  work  and 
that  plaintiff  agreed  to  charge  nothing  for  his  supervision,  an 
instruction  that  by  the  contract  plaintiff  was  employed  by  de- 
fendant to  supervise  the  contractor's  work,  was  erroneous,  as 
ignoring  the  defense,  as  plaintiff  may  have  been  working  for 


806  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

compensation  or  giving  his  services  gratuitously  because  of  his 
interest  in  the  adjoining  property.  Kirchner  v.  Concord  Inv. 
Co,,  127  Mo.  App.  262,  104  S.  W.  1127. 

Sec.  1028.  Instruction  ignoring  whether  plaintiff's  efforts  had 
ceased  or  his  agency  revoked,  error. 

Where,  in  an  action  for  a  broker's  commissions,  there  was 
evidence  that  plaintiff's  agency  had  been  revoked  before  defend- 
ant began  negotiations  with  the  purchaser,  while  plaintiff's 
evidence  indicated  that  such  revocation  was  made  with  knowl- 
edge that  it  was  through  plaintiff's  efforts  the  purchase  was 
made,  an  instruction  ignoring  the  question  whether  plaintiff's 
alleged  efforts  to  sell  the  land  had  not  been  abandoned  or  his 
agency  revoked  before  defendant  and  the  purchaser  met,  was 
erroneous.  Christian  v.  McDonnell,  127  Mo.  App.  630,  106  S. 
W.  1104. 

Sec.  1028a.  Not  error  for  the  court  to  charge  that  if  sale  made 
to  broker's  customer  after  he  abandoned  negotiations  he 
was  not  entitled  to  commissions. 

In  an  action  by  a  broker  for  commissions,  the  court  did  not 
err,  as  against  the  owner,  in  modifying  an  instruction  requested 
by  him,  that  the  broker  could  not  recover  if  he  did  not  agree 
on  the  terms  of  sale  with  the  one  who  purchased  from  the  owner, 
though  the  broker  procured  the  sale,  by  adding  that  he  could 
not  recover  if  the  sale  was  made  after  he  abandoned  the  negotia- 
tions or  the  person  with  whom  he  was  negotiating  declined  to 


PLEADINGS,  PRACTICE,  ETC.  807 

purchase.    Stiewel  v.  Lolly,  89  Ark.  195,  115  S.  W.  1134.     See 
also  Sec.  558. 

Sec.  1028b.    Error  not  to  allow  owner  to  offer  proof  contra- 
dicting that  offered  by  broker. 

In  an  action  by  a  broker  for  commission  for  procuring  pur- 
chaser; held,  that  the  petition,  though  alleging  that  defendants, 
vendors,  through  the  plaintiff,  executed  the  contract  of  sale,  must 
be  deemed  to  have  asserted  that  the  contract  of  sale  was  executed 
pursuant  to  the  enlistment  contract ;  hence,  where  evidence  showed 
that  terms  of  sale  were  contrary  to  the  enlistment  contract,  and 
the  broker  introduced  oral  statements  authorizing  a  sale  on  dif- 
ferent terms,  it  was  error  to  refuse  to  allow  the  vendor  to  offer 
evidence  in  contradiction  thereof,  on  the  theory  that,  since  he  did 
not  deny  knowing  the  fact  of  broker's  authority  to  execute  a  con- 
tract he  should  not,  under  Rev.  Stat.  1911,  art.  1906,  sec.  3710, 
on  trial  offer  proof  in  denial.  Peeples  v.  Griffith,  214  S.  W.  561, 
—  Tex.  Civ.  App.  — . 

Where  defendant  claimed  that,  when  informed  of  plaintiffs 
offer,  he  told  plaintiff  that  the  property  had  been  sold  through 
other  brokers,  and  that  contract  would  be  secured  on  the  follow- 
ing day,,  it  was  error  to  exclude  in  evidence  a  contract  of  sale, 
apparently  executed  on  the  following  day,  pursuant  to  alleged 
prior  acceptance  of  offer.  Duff  &  Conger  v.  Mdkley,  175  N.  Y. 
Sup.  777. 

Sec.  1029.    Instruction  to  find  for  architect,  if  claim  believed, 
erroneous  for  not  submitting  defendant's  claim. 

Where,  in  an  action  by  an  architect,  he  alleged  that  the 
owner  was  to  pay  for  superintending  five  per  cent,  of  the 
lowest  bid,  which  was  $6,150,  and  the  owner  alleged  that  he 
was  only  to  pay,  provided  a  contractor  was  procured  to  erect 
the  building  for  $4,000,  and  there  was  evidence  that  the  lowest 
bid  was  a  little  over  $5,000,  an  instruction  authorizing  a  verdict 
for  the  amount  sued  for,  if  the  jury  believed  the  architect's 
claim,  was  erroneous,  as  withdrawing  from  the  jury  the  question 
of  the  amount  of  the  lowest  bid.  Loftus  v.  Green  (Tex.  Civ. 
App.  '07),  104  S.  W.  396. 


808  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  1030.    Instruction  that  though  terms  unauthorized,  find 

defendant  ratified  contract,  correct. 

In  an  action  to  recover  a  commission  for  finding  a  purchaser 
for  land,  an  instruction  that  if  the  terms  of  the  contract  made 
by  the  brokers  with  the  proposed  purchaser  were  unauthorized 
by  defendant,  before  recovery  could  be  had  against  him,  the 
jury  must  find  that  he  ratified  the  contract  with  full  knowledge 
of  the  facts  and  its  terms,  was  not  objectionable  as  being  on  the 
weight  of  the  evidence.  Sterling  v.  DeLaune  (Tex.  Civ. 
App.  '07),  105  S.  W.  1169. 

Sec.  1031.    Instruction  properly  refused  that  if  owner  believed 
relations  with  broker  ended,  latter  could  not  recover. 

Where  a  land  owner  employed  a  broker  to  sell  certain  land 
and  thereafter,  while  the  broker  was  negotiating  with  a  prospec- 
tive purchaser,  the  landlord  asked  him  to  make  no  further 
efforts  to  sell  the  land  since  the  land  owner's  wife  would  not 
join  him  in  executing  the  deed,  to  which  the  broker  replied, 
"All  right,"  and  directly  afterward  the  land  owner  sold  the 
land  to  a  purchaser  secured  by  the  broker,  the  court,  in  an 
action  by  the  broker  for  his  commissions,  properly  refused  an 
instruction  that  if  the  broker  induced  the  land  owner  to  believe 
that  the  relation  between  them  was  terminated  and  the  land 
owner  acted  upon  such  belief  in  making  the  sale  contract,  the 
broker  could  not  recover.  Branch  v.  Moore,  84  Ark.  462,  105 
S.  W.  1178. 

Sec.  1032.    Instruction  fully  submitted  two  contentions  as  to 
the  right  of  plaintiff  to  commissions. 

Prayers  in  an  action  by  a  real  estate  broker  to  recover  from 
other  brokers  for  a  commission  received  by  them  from  the  sale 
of  a  lot  that  if  the  court  found  that  there  was  no  agreement  to 
make  any  division  of  the  commissions  then  the  verdict  must 
be  for  plaintiff,  whether  or  not  plaintiff  was  a  licensed  real 


PLEADINGS,  PRACTICE,  ETC.  809 

estate  broker,  and  that  if  plaintiff  introduced  the  purchaser  to 
defendants  or  those  for  whom  they  acted,  and  gave  defendants 
notice  of  the  negotiations  between  plaintiff  and  the  subsequent 
purchaser  and  a  sale  was  made  to  such  purchaser  as  the  result 
of  the  introduction  by  plaintiff,  the  verdict  must  be  for  plaintiff, 
and  that  if  a  sale  was  made  through  the  bringing  of  the  parties 
together  by  plaintiff  then  plaintiff  was  entitled  to  recover,  even 
though  the  sale  may  have  been  effected  by  a  direct  agreement 
between  the  defendant  and  the  purchaser,  fully  submitted  the 
two  contentions  of  plaintiff  that  there  was  an  express  agreement 
to  divide  the  commissions,  and  that  if  there  was  no  express 
agreement  plaintiff  was  the  procuring  cause  of  the  sale  made. 
Walker  v.  Baldwin,  106  Md.  619,  68  A.  25. 

Sec.  1033.    Instruction  properly  refused,  that  if  plaintiff  knew 

defendant  had  only  an  option,  he  could  not  recover. 
In  an  action  on  a  contract  to  procure  a  purchaser  for  de- 
fendant's land  plaintiff  contended  that  he  found  a  purchaser 
and  that  the  sale  was  not  consummated  solely  because  of  de- 
fendant's defective  title;  defendant  testified  that  he  at  one 
time  told  plaintiff  he  had  only  an  option,  and  that  plaintiff 
requested  him,  whenever  he  thought  the  title  all  right,  to  give 
him  a  chance  to  buy;  afterwards  defendant  received  a  deed  for 
the  land,  and  he  tendered  a  warranty  deed  thereof  to  the  pur- 
chasers. Held,  that  it  was  not  error  to  refuse  an  instruction 
that  if  plaintiff  knew  that  defendant  had  only  an  option  and 
that,  under  the  agreement,  a  sale  was  to  be  made  by  plaintiff 
at  not  less  than  a  specified  amount  and  that  his  commission  was 
to  be  all  above  that  amount,  plaintiff  could  not  recover.  Weaver 
v.  Richards,  150  Mich.  20,  113  N.  W.  867,  14  D.  L.  N.  617.  See 
also  Sec.  87. 

Sec.  1034.    Instruction  that  plaintiff  found  purchaser  ready, 
able  and  willing,  erroneous  on  that  theory. 

In  an  action  for  commissions  for  the  sale  of  a  lease,  where 
the  petition  alleged  that  plaintiff  negotiated  the  sale  of  a  lease, 
and  after  reaching  an  agreement  whereby  the  purchaser,  agree- 
ing to  pay  a  certain  price  for  the  lease,  the  purchaser  paid  that 
amount  to  the  defendant,  an  instruction  based  on  the  theory 


810  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

that  plaintiff  had  found  a  purchaser  ready,  willing  and  able  to 
buy  the  lease  and  brought  him  into  communication  with  de- 
fendant, is  erroneous  because  outside  the  scope  of  the  petition. 
Northup  v.  Diggs,  128  Mo.  App.  217,  106  S.  W.  1123. 

Sec.  1035.  Instruction  against  S.  erroneous,  as  he  was  not 
liable  in  the  absence  of  the  agreement  alleged. 

In  an  action  on  an  agreement  of  defendant  and  one  S.  to 
pay  plaintiffs  a  certain  commission  for  negotiating  an  exchange 
of  their  properties,  which  agreement  provided  for  payment  of 
the  commissions  on  both  sides,  if  either  party  should  refuse  to 
carry  out  the  exchange  contract,  and  it  appeared  that  defendant 
had  defaulted  although  S.  was  ready,  able  and  willing  to  per- 
form, it  was  error  to  charge  that  if  there  was  a  breach  or 
alleged  breach  by  defendant  of  the  agreement  to  exchange,  plain- 
tiffs had  a  cause  of  action  against  S.  for  his  proportion  of  the 
commissions,  since,  as  he  was  ready,  able  and  willing  to  carry 
out  the  contract  he  was  not  liable  for  commissions  in  the  absence 
of  the  agreement  alleged.  Goodman  v.  Linetzky,  107  N.  Y.  S.  50. 
For  the  same  reason  it  was  error  to  charge  that  irrespective  of 
the  agreement  as  to  the  payment  of  the  commissions,  plaintiffs 
had  a  cause  of  action  against  S.  for  his  proportion  of  the  com- 
missions. Id. 

Sec.  1036.  Error  not  to  give  instruction  that  if  broker  knew 
consent  of  third  person  necessary  for  binding  contract,  he 
could  not  recover. 

In  an  action  for  commissions  for  procuring  a  purchaser  of 
real  estate,  the  defendant  claimed  that  he  was  a  joint  owner  with 
a  third  person,  that  the  broker  knew  that  the  third  person's 
consent  to  a  conveyance  was  necessary,  and  that  the  third 
person  refused  to  give  his  consent;  and  the  court  presented 
defendant's  theory  as  a  denial  that  plaintiff  produced  a  pur- 
chaser ready,  able  and  willing  to  purchase  on  terms  satisfactory 
to  defendant,  the  refusal  to  charge  that  if  the  broker  knew  that 
the  consent  of  the  third  person  was  necessary  before  defendant 
could  enter  into  a  binding  contract,  and  his  consent  could  not 
be  obtained,  plaintiff  was  not  entitled  to  a  commission,  was 


PLEADING,  PRACTICE,  ETC.  811 

reversible  error,  though  the  court  stated  that  he  would  leave  the 
matter  to  the  jury  to  take  into  consideration  in  arriving  at  the 
fac..  Jacobson  v.  Fraade,  10?  N.  Y.  S.  706,  56  Misc.  631.  See 
also  Sec.  125. 

Sec.  1037.    Instruction  for  plaintiff  erroneous,  where  evidence 

shows  absence  of  license. 

In  an  action  to  recover  commissions  on  a  sale  or  exchange 
of  real  estate,  where  the  plaintiff  describes  himself  in  his  state- 
ment of  claim  "as  a  dealer  in  real  and  personal  property  and 
in  the  regular  course  of  business"  made  the  sale  or  exchange  in 
question,  and  it  is  admitted  that  plaintiff  had  not  taken  out  a 
license  as  required  by  law,  the  statement  of  claim  is  admissible 
as  evidence  tending  to  show  that  the  plaintiff  is  a  real  estate 
broker,  and  where  the  statement  is  supported  by  the  evidence  of 
two  witnesses  called  by  the  defendant  it  is  error  for  the  court 
to  give  binding  instructions  for  plaintiff.  Sprague  v.  Reilly,  34 
Pa.  Super.  Ct.  332. 

Sec.  1038.    Instruction  properly  refused  as  assuming  for  plain- 

tiff,  without  hypothesising  belief  on  the  evidence. 
In  an  action  for  a  broker's  commissions,  an  instruction  that 
plaintiff  was  entitled  to  a  verdict  for  such  damages  as  the  jury 
believe  from  the  evidence  he  has  sustained  from  defendant's 
breach  of  contract  was  properly  refused  as  assuming  and  in- 
structing a  finding  for  plaintiff  without  hypothesising  the  belief 
on  the  evidence  by  the  jury.  Green  v.  Brady,  152  Ala.  507, 
44  S.  408.  See  also  Sec.  949. 

Sec.  1039.    Instruction  not  objectionable  as  minimizing  the 

issue  of  alteration  of  contract. 

Where,  in  an  action  on  a  written  contract  employing  plaintiff 
as  a  broker  to  sell  defendant's  land,  defendant  pleaded  that  the 
contract  had  been  altered  and  also  denied  that  the  plaintiff 
had  secured  a  purchaser,  an  instruction  that  certain  evidence 
was  admissible  as  bearing  on  "the  real  testimony  in  this  case," 
to-wit,  whether  plaintiff  had  furnished  a  buyer,  was  not 
objectionable  as  minimizing  the  issue  of  alteration  in  view  of 
other  instructions  directly  stating  that  if  the  jury  find  the  con- 


AMERICAN  LAW  REAL  ESTATE  AGENCY. 

tract  has  been  altered  they  must  find  for  defendant.  McDermott 
v.  Mahoney  (Iowa  Sup.  '06),  106  N.  W.  925.  See  also  Sees.  55, 
73,  293. 

Sec.  1040.    Instruction  caused  no  prejudice  to  defendant  when 

jury  found  no  excess  money  was  paid. 
In  an  action  for  commissions  agreed  to  be  paid  per  acre  in  a 
sale  of  property,  instructions  relating  to  plaintiff's  claim  to  the 
excess  of  purchase  money  above  a  named  sum  cannot  have 
prejudiced  defendant  when  the  jury  expressly  found  that  no 
purchase  money  was  received  in  excess  of  that  sum.  Wilson  v. 
Everitt,  139  U.  S.  616,  11  Sup.  Ct.  664;  Gaume  v.  Horgan,  122 
Mo.  App.  700,  99  S.  W.  457. 

Sec.  1040a.    When  not  error  to  omit  to  charge  as  to  respon- 
sibility of  purchaser. 

"Where,  in  an  action  by  a  broker  for  commissions  for  procuring 
a  purchaser  of  land,  the  evidence  showed  that  the  sale  was 
consummated  on  the  terms  proposed  by  the  owner,  it  was  not 
error  to  omit  to  charge  that  the  proof  must  show  that  the 
purchaser  procured  was  able,  ready  and  willing  to  complete  the 
purchase  on  the  terms  prescribed.  Lewis  v.  Susmilch,  130  Iowa, 
203,  106  S.  W.  624. 

Sec.  1041.    Instruction  not  inconsistent  with  terms  of  contract 

in  securing  title,  etc. 

In  an  action  for  commissions  under  a  contract  by  which 
plaintiff  was  employed  to  assist  defendant  in  acquiring  a  title 
to  property  for  the  purpose  of  effecting  a  consolidation  of  it 
with  other  property,  a  charge  that  plaintiff  could  not  recover 
if  the  defendants  were  unable  to  effect  a  sale  with  the  owner, 
and  other  persons  in  co-operation  with  defendant  did  so  and 
effected  a  consolidation,  even  though  defendant  contributed  to 
the  purchase,  was  not  inconsistent  with  the  terms  of  the  contract, 
since  the  thing  contracted  to  be  done  was  the  securing  of  the 
title  to  the  property  and  the  making  of  the  consolidation  by 
plaintiff  and  not  by  another  person  unconnected  with  defendant. 
Bailey  v.  Carleton,  43  Colo.  4,  95  P.  542. 


PLEADINGS,   PRACTICE,   ETC.  813 

Sec.  1041a.    Charge  in  the  alternative  held  inconsistent. 

Where,  in  an  action  by  q  broker  for  commissions  for  pro- 
curing a  purchaser  of  real  estate  the  evidence  showed  that  he 
was  employed  to  procure  a  purchaser  willing  to  pay  $16,000, 
for  a  commission  of  whatever  was  obtained  in  excess  of  that 
sum,  that  he  procured  a  purchaser  willing  to  pay  $16,500  on 
condition  that  the  owner  should  pay  two  and  one-half  per  cent, 
thereof  to  the  purchaser's  agent  as  compensation  in  the  trans- 
action, and  that  the  owner  refused  to  convey,  an  instruction 
that  the  broker  could  recover  $500  and  an  instruction  that  he 
could  recover  the  difference  between  $16,000  and  the  sum  which 
the  purchaser  secured  by  him  was  willing  to  pay  for  the  prop- 
erty, were  inconsistent.  Slayback  v.  Wetzel  (Mo.  App.  '09), 
123  S.  W.  982.  Compare  Sec.  307. 


Sec.  1042.    Instruction  properly  refused  as  to  owner's  good 
faith,  where  no  evidence  tended  to  show  it. 

In  an  action  for  commissions  for  selling  real  estate  it  is  not 
error  to  refuse  to  submit  an  instruction  as  to  the  owner's  good 
faith  in  selling  the  real  estate  himself  without  regard  to  the 
agent  or  the  payment  of  commissions  where  there  is  no  evidence 
tending  to  show  good  faith  by  the  owner  in  dealing  with  the 
agent  with  reference  to  the  commission.  Church  v.  Dunham,  14 
Idaho,  776,  96  Pa.  203,  205. 

Sec.  1043.    Instruction  erroneous  not  based  on  hypothesis  that 
jury  must  believe  as  contended  by  defendants. 

Where,  in  an  action  by  a  real  estate  broker  for  commissions, 
it  was  contended  by  him  that  he  did  not  bind  himself  to  sell 
the  property  or  to  furnish  a  purchaser,  as  contended  by  de- 
fendant, but  he  was  to  be  paid  if  he  simply  introduced  a  person 
to  whom  a  sale  should  be  subsequently  made  by  defendants,  an 
instruction  requested  by  defendants  applying  the  general  rule 
that  a  real  estate  broker  employed  to  sell  lands  must  bring 
about  a  sale  or  procure  a  purchaser  ready,  willing  and  able  to 
purchase,  not  based  on  the  hypothesis  that  the  jury  must  first 
believe  the  contract  to  be  as  contended  by  defendants,  was 


814  AMERICAN  LAW  REAL  ESTATE  AGENCY 

properly  refused.    Mayer  v.  McCann,  136  111.  App.  50,  affirmed 
in  McCann  v.  Mayer,  232  111.  507,  83  N.  B.  1042. 

Sec.  1044.    Instruction  to  find  for  defendant  properly  refused, 
where  plaintiff's  evidence  is  uncontradicted. 

Where,  in  an  action  on  a  contract  to  pay  a  real  estate  broker 
a  specified  commission  per  acre  on  wholesale  sales,  or  sales  of 
large  tracts,  to  persons  whom  he  introduced  and  who  subse- 
quently purchased,  the  broker  testified  to  the  contract  and  the 
performance  of  it  by  introducing  a  person  who  afterwards 
purchased,  it  was  not  error  to  refuse  to  direct  a  verdict  for 
defendant,  as  his  (plaintiff's)  evidence,  standing  alone  and 
uncontradicted,  authorized  a  verdict  in  his  favor.  Id. 

Sec.  1044a.    Request  to  charge  for  defendant  properly  refused. 

The  court,  in  an  action  to  recover  commissions  for  procuring 
a  contract  for  defendant  with  one  D.  having  charged  that 
"plaintiff  can  not  have  commissions  from  both  sides;  it  is 
claimed  by  the  defendant  that  he  was  endeavoring  to  do  that ;  if 
that  were  true,  while  he  was  working  for  the  defendant  he 
can  not  recover  in  this  action  at  all,  provided  you  believe  he 
was  entitled  to  get  a  commission  from  D.  as  well,"  there  was 
no  error  in  refusing  defendant's  request  for  a  charge  that  if,  at 
the  time  of  the  making  of  the  contract  between  plaintiff  and 
defendant  plaintiff  was  negotiating  with  D.  to  do  the  work 
himself,  the  jury  must  find  for  the  defendant.  Hume  v.  Flint, 
11  N.  Y.  S.  431;  Brady  v.  Rickey  &  Casey,  202  S.  W.  170,  — 
Tex.  Civ.  App.  — . 

Sec.  1045.    Instruction  as  to  the  value  of  land  received  in  ex- 
change misleading. 

In  an  action  for  a  broker's  commissions  where  it  was  con- 
ceded that  a  commission  of  five  per  cent,  was  agreed  on  by  the 
parties  and  the  evidence  as  to  the  value  of  defendant's  land 
and  of  that  which  he  received  in  exchange  was  conflicting,  a 
charge  imposing  as  a  condition  upon  defendant's  right  to 
succeed  that  he  did  not  make  a  contract  for  five  per  cent,  com- 
missions "as  above  explained"  (meaning  in  a  previous  portion 
of  the  charge),  and  that  defendant's  land  was  only  worth  $4,000 


PLEADINGS,   PRACTICE    ETC.  815 

or  less,  while  his  equity  in  the  land  he  received  in  exchange  was 
worth  only  about  $2,000  or  $3,000,  was  misleading  and  preju- 
dicial. Jameson  v.  Hutchison  (Tex.  Civ.  App.  '08),  109  S.  "W. 
1096. 


Sec.  1046.    Instruction  properly  refused  to  give  verdict  for 
defendant,  where  suit  was  prematurely  brought. 

In  an  action  for  a  broker's  commissions  for  effecting  an 
exchange  of  property,  a  requested  charge  that  if  defendant 
agreed  to  pay  a  commission  on  a  sale  of  the  land  conveyed  to 
him  in  exchange  and  the  land  had  not  been  sold  the  jury  should 
find  for  the  defendant,  was  properly  refused,  since,  under  such 
circumstances,  they  should  find  for  defendant  without  prejudice 
to  sue  in  the  event  of  a  sale  of  the  land.  Id. 


Sec.  1046a.    Error  in  refusing  to  direct  a  verdict  for  defendant. 

In  an  action  by  a  real  estate  broker  against  the  owner  of 
real  estate  to  recover  a  commission  for  procuring  a  purchaser 
of  the  property,  with  whom  the  owner  makes  a  contract  of  sale, 
which  he  afterwards  refuses  to  consummate,  the  trial  court 
errs  in  refusing  to  direct  a  verdict  for  defendant  where  it 
appears  that  the  broker  originally  approached  the  owner  at  the 
suggestion  of  the  prospective  purchaser  for  th«  sole  purpose  of 
getting  the  property  for  the  latter;  that  without  disclosing  the 
name  of  the  purchaser  to  the  owner  he  made  ax  offer  for  the 
property  at  the  price  named  by  the  purchaser  which  was  less 
than  that  fixed  by  the  owner,  which  offer  the  owner  refused; 
that  his  explanation  of  his  many  subsequent  visits  to  the  owner 
which  resulted  in  a  contract  of  sale  at  the  original  price  fixed 
was  that  he  was  trying  to  get  the  property  for  the  purchaser; 
that,  accepting  his  statement  as  true  that  the  owner  employed 
him  to  act  as  his  agent  and  promised  to  pay  him  a  commission, 
he  tried  to  induce  the  owner  to  reduce  the  price  in  the  interest 
of  the  purchaser,  and  that,  according  to  his  own  statement,  he 
was  trying  to  get  the  property  as  cheap  as  he  could  for  the 
buyer.  Harten  v.  Loffler,  31  App.  D.  C.  362.  See  also  Sec.  314. 


816  AMERICAN   LAW   EEAL   ESTATE   AGENCY. 

Sec.  1047.    Instruction  erroneous,  that  jury  could  not  con- 
sider that  defendant  was  surety  on  plaintiff's  note. 
An  instruction,  in  an  action  for  a  real  estate  broker's  com- 
missions, that  the  jury  in  arriving  at  a  verdict  could  not  con- 
sider testimony  that  defendant  went  on  plaintiff's  note  as  surety, 
or  that  defendant  had  been  sued  on  the  note,  was  erroneous,  the 
testimony  being  relevant  to  the  issue  as  to  the  terms  of  the 
contract  between  the   parties.     Yates  v.   Brattam    (Tex.    Civ. 
App.  '08),  111  S.  W.  416.  See  also  Sec.  817b. 

Sec.  1047a.    Court  upheld  in  peremtorily  instructing  jury  to 
find  for  defendant. 

Appellants,  real  estate  agents,  hearing  that  appellee,  who  was 
absent  from  the  State,  wrished  to  sell  his  farm,  wrote  to  him 
that  they  had  a  purchaser  for  it,  asking  him  to  fix  his  lowest 
price  and  allowing  commissions.  Appellee  wrote,  naming  $225 
per  acre  as  his  lowest  net  price,  and  saying  "whatever  your 
price  is  for  selling  must  be  added  to  this."  There  was  no  other 
correspondence  and  nothing  further  was  ever  said  by  appellants 
to  appellee  as  to  the  sale  of  the  farm.  Four  months  after  the 
passing  of  the  letters  appellee  sold  the  farm  for  $200  an  acre 
to  a  person  with  whom  appellants  were  negotiating  for  its  sale, 
but  with  whom  they  never  made  any  contract.  In  this  action 
by  appellants  against  appellee  to  recover  commissions  for  making 
the  sale.  Held,  that  upon  proof  of  the  facts  stated  the  court  did 
not  err  in  giving  peremptory  instructions  for  defendant;  as 
appellants  did  not  show  that  they  ever  procured  a  purchaser  on 
the  terms  named,  or  by  the  wrongful  act  of  appellee  to  have 
been  prevented  from  doing  so,  they  can  not  recover.  Hobbs  v. 
Miller,  14  Ky.  L.  R.  (abst),  719.  Compare  Sec.  446. 

Sec.  1047b.    Instruction  that  sale  by  defendant  was  made  on 

day  prior  to  sale  by  plaintiff,  upheld. 

Before  plaintiff  reported  a  sale  of  the  property,  defendant, 
on  the  ninth  day  of  the  month,  through  another  agency,  signed 
a  written  agreement  for  a  sale  of  the  property  for  the  agreed 
consideration,  $1,000  to  be  paid  in  cash  on  delivery  of  the 
agreement  and  the  balance  on  delivery  of  the  deed,  with  abstract 


PLEADINGS,   PRACTICE,   ETC.  817 

showing  good  title.  The  vendee  almost  immediately  accepted 
the  proposition  in  writing  and  notice  was  immediately  given  to 
defendant  of  the  sale,  but  by  agreement  the  payment  of  the 
$1,000  was  deferred  until  the  next  morning.  At  about  nine 
o'clock  on  the  tenth,  plaintiff  sold  the  property  and  received 
part  payment  therefor  from  another  person.  The  vendee  under 
the  first  contract  met  defendant  at  the  appointed  hour  and  just 
as  the  deal  was  being  completed  plaintiff  appeared  with  his 
purchaser,  and  was  then,  for  the  first  time,  informed  of  the 
prior  sale.  Defendant,  in  an  action  on  the  contract,  testified 
that  the  agent  through  whom  the  sale  was  made  which  the  de- 
fendant accepted,  found  the  purchaser  and  sold  the  property 
before  the  plaintiff  made  a  sale.  Held,  that  the  sale  which  was 
accepted  by  defendant  was  made  on  the  day  prior  to  the  sale 
by  plaintiff,  and  an  instruction  to  that  effect  was  correct.  Tuffree 
v.  Bienford,  130  Iowa,  532,  107  N.  W.  425. 

Sec.  1047c.    Charge  proper  that  unless  jury  find  contract  made 

on  day  alleged  must  find  for  defendant. 
Where,  in  an  action  by  a  broker  for  commissions  for  a  sale  of 
land,  the  petition  declared  on  a  verbal  contract  made  on  a  cer- 
tain day,  and  specifically  set  forth  the  terms  of  the  agreement 
and  its  performance  by  plaintiff,  an  instruction  that  unless  the 
jury  believe  that  defendant  expressly  employed  plaintiff  on  the 
day  named  as  his  agent  to  sell  the  land,  they  should  find  for 
defendant  was  proper.  Fortran  v.  Slower s  (Tex.  Civ.  App. 
'08),  113  S.  W.  631.  Compare  Sec.  887. 

Sec.  1047d.    Modification  of  instruction  held  to  be  proper. 

In  an  action  for  broker's  commissions,  an  instruction  that 
"merely  procuring  a  purchaser  to  enter  into  a  contract  for  the 
purchase  of  property  does  not  entitle  a  broker  to  commissions, 
unless  such  persons  are  ready,  willing  and  able  to  make  the  pay- 
ments *  *  *  named  in  the  contract, ' '  was  properly  modified 
by  adding,  "unless  the  seller  accepted  the  purchaser."  Fox  v. 
Ryan,  240  111.  391,  88  N.  E.  974,  See  Sec.  24. 


818  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  1047e.    Instructions  improperly  refused. 

(1)  Where,  in  an  action  for  broker's  commissions  in  inducing 
a  contract  for  an  exchange  of  land  for  an  interest  in  a  stock  of 
goods,  defendant  claimed  that  he  was  induced  to  sign  the  con- 
tract, which  he  subsequently  refused  to  complete,  because  of  false 
representations  that  the  stock  was  unincumbered,  and  that  the 
owner  refused  to  complete  the  contract  unless  defendant  would 
pay  off  the  incumbrance  on  the  goods,  amounting  to  $2,000,  the 
court  erred  in  refusing  to  charge  that  if  the  jury  found  that,  at 
the  time  of  the  contract,  the  owner  of  the  goods  falsely  repre- 
sented that  the  goods  were  unincumbered,  and  defendants  were 
influenced  thereby  to  execute  the  contract,  they  should  return  a 
verdict  for  him;  since,  if  such  misrepresentation  was  established, 
it  invalidated  the  entire  contract  and  rendered  it  unenforceable 
against  defendant,  unless  the  goods  were  denuded  from  their  in- 
cumbrance.    Webb   v.  Durrett,  136   S.   W.   1189,  —  Tex.   Civ. 
App.  — . 

(2)  Instruction  that  if  a  broker,  having  a  contract  for  a  com- 
mission of  10%,  after  securing  a  purchaser  for  $13,000,  procured 
owner  to  agree  to  take  $10,500  net,  without  informing  him  that 
the  purchaser  was  to  pay  $13,000,  defendant  could  not  recover 
commission;  held,  improperly  refused.     Cardoza  v.  Middle  Atlan- 
tic Em.  Co.,  82  S.  E.  80,  116  Va.  342. 

(3)  In  an  action  to  recover  for  services  in  an  alleged  sale  of 
land  under  a  contract  for  a  division  of  commissions,  it  was  error 
to  refuse  to  charge  that  intestate  could  not  recover  for  a  sale  of  a 
sixth  interest  in  the  land,  if  it  was  agreed  that  the  contracted 
compensation  should  be  paid  out  of  the  sale  of  the  remainder  un- 
der a  subsequent  option.     Smith  v.  Crane,  154  S.  W.  857,  169 
Mo.  App.  695. 

(4)  In  an  action  by  a  real  estate  broker  for  a  commission  for 
procuring  a  tenant  for  defendant,  it  was  error  to  refuse  a  charge 
requested  by  defendant,  that  if  plaintiff  introduced  S.  to  defend- 
ant as  a  prospective  tenant  for  one  store,  and  S.  afterwards  ap- 
plied to  defendant,  either  on  his  own  behalf  or  for  himself  and 
others,  for  a  lease  of  a  number  of  stores,  this  would  not  give  plain- 
tiff a  claim  for  commissions,  where  the  action  was  not  to  recover 
a  commission  for  procuring  a  tenant  for  one  store,  but  for  pro- 
curing a  lease  to  K.  for  nine  stores.    Meyer  v.  Improved  Property 
Holding  Co.  of  N.  Y.,  122  N.  Y.  Sup.  296,  137  App.  Div.  691. 


PLEADINGS,  PRACTICE,  ETC.  819 

(5)  Where,  in   a  suit  for  a  broker's   commission,    defendant 
pleaded  that  he  had  paid  H.  a  commission,  as  the  procuring  cause 
of  the  sale,  a  requested  charge  that  such  payment,  if  any,  would 
be  no  defense  to  plaintiff's  action,  and  could  not  be  construed  for 
that  purpose,  should  have  been  granted.     Stephenson  v.  Jackson, 
128  S.  W.  1196,  —  Tex.  Civ.  App.  — . 

(6)  In    broker's    action,    instruction    authorizing    recovery    if 
$20,000  or  more  was  obtained  for  the  property;  held,  improperly 
refused,  the  charge  given  allowing  recovery  only  if  jury  believed 
$27,000  was  obtained.     Crass  v.  Adams,  175  S.  W.  510,  —  Tex. 
Civ.  App.  — . 

(7)  An  instruction  that  the  issue  was,  whether  a  valid  con- 
tract was  made  between  defendant  and  C.,  that  the  burden  of 
proving  this  was  on  the  broker,  and  that,  though  such  contract 
was  made,  defendant  could  not  be  held  liable,  unless  he  failed  to 
perform   it   in    some   material   point;    held,   improperly   refused. 
Cardozo  v.  Middle  Ail  Emi.  Co.,  82  S.  E.  80,  116  Va.  342. 

(8)  That  a  broker  acting  for  both  parties  to  an  exchange  could 
not,  of  itself,  warrant  refusal  of  instruction  that  notice  to  broker 
was  notice  to  principal.  Ward  v.  Johnson,  170  P.  538,  87  Or.  314. 

(9)  In  a  broker's  action  for  commissions  on  the  sale  of  a  farm, 
where  plaintiff  did  not  file  his  amendment  first  asserting  an  ex- 
clusive agency  until  he  was  in  the  trial,  about  four  years  from 
filing  of  the  original  petition,  the  court  should  have  instructed, 
on  defendant  owner's  request,  that  the  matter  was  a  circumstance 
to  be  weighed  in  connection  with  all  the  evidence.     Thomas  v. 
Wychoff,  174  K  W.  26,  —  Iowa  Sup.  — . 

Sec.  1047f.    Instructions  upheld  by  reviewing  court. 

(1)  In  an  action  for  commissions  for  a  sale  of  real  estate 
based  on  a  contract  fixing  the  compensation  at  the  price  secured 
above  a  certain  sum;  held,  that  the  court  was  warranted  in  giv- 
ing peremptory  instruction  in  favor  of  plaintiff.     Davidson   v. 
Zerger,  181  111.  App.  113. 

(2)  In  an  action  to  recover  commissions  for  negotiating  ex- 
change of  real  estate  for  defendants,  directing  a  verdict  for  plain- 
tiffs held  not  improper.    Rothlaum  v.  Solomon,  187  111.  App.  338. 

(3)  Where  a  broker  did  not  predicate  his  right  to  commission 
on  the  theory  that  he  was  employed  to  sell  defendant's  farm  and 


820  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

did  sell  it,  but  admitted  that  defendant  sold  the  farm  himself, 
an  instruction  that  if  defendant  contracted  to  pay  plaintiff  a  com- 
mission on  the  purchase  price,  provided  plaintiff  sold  the  farm 
for  defendant,  they  should  find  for  defendant,  was  not  objection- 
able as  refusing  plaintiff  a  recovery,  even  though  he  was  employed 
and  may  have  made  the  sale.  Stoner  v.  Nail,  148  S.  W.  8,  149 
Ky.  124,  opin.  mod.  on  re.,  150  S.  W.  648,  150  Ky.  511. 

(4)  In  a  broker's  action  for  commissions  for  procuring  an  offer 
of  a  loan,  in  which  defendant  claimed  that  his  offer  as  to  a  loan 
was  not  an  exclusive  privilege,  and  had  expired  when  the  client 
agreed  to  make  the  loan,  an  instruction  on  the  question;  held, 
not  inconsistent  with  itself  and  confusing.     West  v.  Hudson,  137 
N.  W.  668,  171  Mich.  669. 

(5)  In  an  action  by  a  broker  to  recover  one-half  of  the  commis- 
sion which  he  asserted  defendant  agreed  to  share  with  him,   a 
charge  held  correct.    Minds  v.  Reyes,  155  N.  W.  493,  189  Mich. 
629. 

(6)  In  an  action  by  a  broker  for  compensation  for  procuring 
a  purchaser,  an  instruction  held  not  open  to  the  objection  that  it 
was  not  justified  by  evidence.    Moore  v.  King,  178  S.  W.  124,  — 
Mo.  Sup.  — . 

(7)  Instruction  in  an  action  by  a  broker  for  breach  of  con- 
tract; held,  not  erroneous  for  failing  to  formally  limit  the  jury 
in  assessing  damages.    Id. 

(8)  In  a  broker's  action  against  another  broker  for  a  commis- 
sion, court's  statement  of  plaintiffs  contention  held  to  have  sup- 
port in  the  evidence,    Nevins  v.  Hughes,  84  S.  E.  769.  168  N.  C. 
477. 

(9)  In  an  action  by  a  broker  for  commissions,  an  instruction 
that  one  who  signs  a  contract  drafted  by  his  own  adviser,  can  not 
say  he  did  not  understand  it  was  not  in  conflict  with  another, 
that  plaintiff  could  not  recover  if  defendant  understood  that  his 
apple  crop  was  reserved  where  the  first  related  to   defendant's 
claim  that  he  did  not  know  that  he  was  signing  a  contract.     Sill 
v.  Ceschi,  140  P.  749,  167  Gal.  698. 

(10)  In  an  action  for  commissions  on  a  sale  of  real  estate 
claimed  to  have  been  made  by  plaintiff  for  defendant,  it  is  not 
error  in  an  instruction  to  use  the  word  "listed"  in  the  same  sense 

.  that  it  had  been  frequently  used  in  the  testimony,  and  as  it  is 


PLEADINGS,  PRACTICE,  ETC.  821 

understood  in  ordinary  conversation.     Wright  v.  Olson,  191  111. 
App.  272. 

(11)  In  an  action  by  brokers  for  commission  for  procuring  a 
purchaser  for  land,  an  instruction  on  the  question  of  exclusive 
contract  was  warranted  by  evidence  tending  to  show  that  defend- 
ant agreed  to  wait  until  a  certain  day,  and  not  to  sell  without 
giving  notice  to  plaintiffs.     Reimers  v.  Pierson,  113  P.  436,  58 
Or.  86. 

(12)  An   instruction    in   a   broker's    action    for    commissions; 
held,  not  erroneous  as  conflicting  between  the  proofs  relating  to 
an  implied  promise   and  those   relating  to   an   express   promise. 
Carl  v.  Wolcott,  156  S.  W.  334,  —  Tex.  Civ.  App.  — . 

(13)  Instruction   submitting,   whether  commissions   should  be 
paid  on  a  broker  procuring  a  contract  of  exchange  or  on  the  ex- 
change being  completed;  held,  proper.    Ball  v.  Davenport,  152  N. 
W.  69,  170  Iowa,  33. 

(14)  An  instruction  in  an  action  by  a  broker  for  commissions 
for  procuring  contract  for  exchange  of  real  estate;  held,  to  deal 
only  with  the  question  of  the  alleged  failure  of  the  minds  of  the 
parties  to  meet,  "of  which  there  is  no  evidence."    Id. 

(15)  An   instruction  given  on  a  broker's  right  to   recover  a 
commission,  and  on  the  owner's  right  to  withdraw  the  land  from 
the  market  and  to  change  the  price,  to  avoid  liability  for  a  com- 
mission; held,  not  erroneous.    Culbertson  v.  Sheridan,  144  P.  268, 
93  Kan.  268. 

(16)  Where,  in  an  action  for  broker's  commission,  there  was 
evidence  that  plaintiff  had  told  defendant  that  he  would  have 
nothing  further  to  do  with  the  purchaser,  after  he  had  withdrawn 
a  prior  offer,  the  court  properly  charged  that  if  the  jury  found 
plaintiff   so    stated,    defendant    was   entitled   to    employ    another 
broker  to  sell  the  property  to  such  purchaser,  and,  under  such 
circumstances,  plaintiff  could  not  recover.     Woods  v.  Lowe,  92 
N".  E.  772,  207  Mass.  1. 

(17)  In  an  action  by  a  broker  for  commissions  on  a  sale  of 
land,  the  issues  raised  at  the  trial  were,  whether  plantiff  with- 
drew from  further  negotiations  with  the  prospective  purchaser  to 
whom    a   sale   was    finally   made   through   another   broker,    and 
whether  the  offer  by  such  purchaser  was  communicated  to  defend- 
ant.    Held,  that  the  court  adequately  submitted  the   issues  by 


822  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

charging  that,  if  the  plaintiff  refused  to  further  deal  with  the 
purchaser,  defendant  was  justified  in  employing  another  broker 
to  do  so,  and,  in  such  case,  plaintiff  would  not  be  entitled  to  com- 
pensation, that  if  the  sale  was  wholly  due  to  the  efforts  of  the 
other  broker,  plaintiff  could  not  recover,  but  that  if  plaintiff's 
employment  had  not  been  terminated,  the  jury  might  find  that 
plaintiff  was  the  efficient  cause  of  he  sale,  if  they  were  satisfied 
that  it  was  in  consequence,  though  not  absolutely  and  entirely, 
that  the  sale  was  made,  and  that  if  there  was  a  bona  fide  offer 
to  purchase  made  by  the  purchaser  to  the  plaintiff,  which  plaintiff 
wrongfully  failed  to  communicate  to  defendant,  whereby  he  was 
injured,  plaintiff  failed  in  his  duty  and  could  not  recover.  Id. 

(18)  An  instruction  stating  matters  essential  to  the  validity 
and  the  requisite  proof  of  the  contract  relied  on  by  plaintiff,  in 
an  action  for  compensation  for  procuring  a  purchaser  for  defend- 
ant's farm;  held,  proper.    Tenner  v.  Joslin,  155  N.  W.  762,  132 
Minn.  1. 

(19)  In  an  action  for  commissions,   an  instruction  that  the 
broker  to  recover  must  procure  a  purchaser  ready,  willing  and 
able  to  purchase  on  the  terms  fixed  by  the  owner;  held,  not  er- 
roneous, where  plaintiff  testified  to  a  different  contract  from  that 
proposed  by  the  owner.    Oilfillan  v.  Schmidt,  151  S.  W.  161,  167 
Mo.  App.  709. 

(20)  Where  certain  instructions  in  an  action  for  broker's  com- 
mission required  a  finding  that  plaintiff  must  have  "secured"  a 
purchaser  for  defendant's  land,  the  word  "secure"  meant  to  "ob- 
tain," not  being  synonymous  with  "get,"  "obtain"  and  "attain," 
one  definition  of  which  is,  to  "procure";  and  hence,  the  instruc- 
tions were  not  objectionable  for  failure  to  require  that  plaintiff  was 
the  "procuring  cause"  of  the  sale.    Ross  v.  Major,  163  S.  W.  880, 
178  Mo.  App.  431. 

(21)  An  instruction  that,  unless  a  definite  time  was  specified 
in  the  contract  in  which  plaintiff  was  to  sell,  lapse  of  time  was 
immaterial,  if  not  unreasonable;  held,  not  misleading.     Tull  v. 
Starmer,  176  S.  W.  511,  188  Mo.  App.  713. 

(22)  In  an  action  by  brokers  for  commission,  instruction  to 
find  for  plaintiffs  if  they  procured  a  person  ready,  willing  and 
able  to  purchase  on  the  "terms"  authorized;  held,  not  erroneous 
for  failure  to  use  the  expression,  "exact  terms."     Thompson  v. 
DeLonfj,  140  P.  427,  40  Okl.  718. 


PLEADINGS,  PRACTICE,  ETC.  823 

(23)  The  clause  of  an  instruction  that  a  real  estate  agent  "is 
entitled  to  his  commission  when  he  produced  the   landowner  a 
purchaser  who  is  ready,  able  and  willing  to  buy  the  land  on  the 
terms  thereof,"  is  not  inconsistent  with  one  that  "plaintiff  must 
show  that  he  brought  together  defendant  and  the  purchaser,  and 
the  purchaser  was  induced  to  buy  defendant's  farm,  and  his  ef- 
forts were  the  procuring  cause  of  the  sale."    Peterson  v.  Bogner, 
117  P.  805,  59  Or.  555. 

(24)  An  instruction,  in  an  action  by  a  broker  for  commissions, 
that  the  original  price  at  which  he  was  authorized  to  sell  was  a 
certain  amount,  yet,  if  afterwards  the  parties  made  a  new  con- 
tract whereby  the  price  at  which  plaintiff  could  sell  was  raised,  he 
must  prove  he  produced  a  party  ready,  able  and  willing  to  buy  at 
the  latter  price,  does  not  require  plaintiff  to  prove  defendant's 
defense.    Id. 

(25)  In  an  action  for  a  commission  on  a  sale  of  machinery 
and  lease  of  a  mill,  modification  of  an  instruction  requested  by 
defendant  as  to  tempQrary  suspension  of  negotiations;  held,  cor- 
rect.   National  Milling  Co.  v.  Kirby,  94  A.  149,  —  R.  I.  Sup.  — . 

(26)  In  an  action  by  a  broker  for  commission  for  procuring  an 
exchange  of  real  estate  instruction  submitting  the  question  whether 
an  agreement  for  an  exchange  was  made,  and  making  the  right  to 
recovery  dependent  on  an  affirmative  finding;  held,  proper.     Lan- 
ham  v.  Cockrell,  152  S.  W.  189,  —  Tex.  Civ.  App.  — .,  judg.  aff., 
194  S.  W.  936,  —  Tex.  Sup.  — . 

(27)  An  instruction,  at  the  defendant's  request,  in  an  action 
to  determine  which  of  two  real  estate  brokers  was  entitled  to  the 
commission  for  selling  the  land,  that  where  real  estate  was  listed 
for  sale  with  several  real  estate  agents,  acting  independently,  the 
one  who  succeeded  in  bringing  about  the  contract  between  the 
seller  and  purchaser  was  the  one  who  earned  the  commission,  re- 
gardless of  the  fact  that  some  other  real  estate  man  may  have  in- 
troduced the  purchaser  to  the  seller,  if  error,  as  excluding  the 
theory  that  the  broker  who  is  the  procuring  cause  of  the  sale  is  en- 
titled  to   the    commission,    did   not    constitute    reversible    error, 
where  instructions  were  given  in  plaintiff's  behalf,  that  if  the  pur- 
chaser of  the  land  had  it  first  brought  to  his  notice  by  plaintiff, 
who,  at  his  solicitation,  disclosed  the  owner's  name,  and  the  in- 
formation received  from  plaintiff  was  the  primary  cause  of  the 


824  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

purchaser  afterwards  buying  the  land,  then  plaintiffs  were  entitled 
to  recover,  even  though  defendants  showed  the  purchaser  the  land 
and  assisted  in  closing  the  trade,  and  that  if  the  purchaser  prom- 
ised plaintiffs  to  take  it  if  it  suited,  before  defendants  brought 
the  land  to  the  purchaser's  notice,  and  the  owner  was  notified  by 
the  plaintiffs  of  that  fact,  and  the  defendants  afterwards  took 
the  purchaser  to  show  him  the  land,  then  plaintiffs  were  entitled 
to  recover,  even  though  they  did  not  bring  the  purchaser  and 
owner  together,  and  did  not  close  the  trade  for  the  land.  Painters 
v.  Kilgore,  101  S.  W.  809,  —  Tex.  Civ.  App.  — . 

(28)  An  instruction  as  to  broker's  right  to  commission,  where 
he  did  not  personally  conduct  the  negotiations,  and  was  not  pres- 
ent when  the  bargain  was  closed,  and  where  his  principal  did  not, 
at  the  time,  know  that  he  found  the  purchaser,  was  not  inap- 
plicable to  the  facts,  where  plaintiff  did  not  personally  negotiate 
the  exchange,  and  was  not  present  when  it  was  made.    McKinney 
v.  Thedford,  166  S.  W.  443,  —  Tex.'  Civ.  App.  — . 

(29)  Though  there  may  be  a  shade  of  difference  between  the 
expression  "procuring  cause"  and  "efficient  cause,"  an  instruction 
authorizing  a  verdict  for  the  broker,   if  he  was  the  procuring 
cause  of  the  sale,  is  correct.     Bogley  v.  Foley,   144  P.   25,   82 
Wash.  222. 

(30)  In  broker's  action  for  compensation  fixed  by  written  con- 
tract authorizing  him  to  find  a  purchaser,  instruction  as  to  the 
intention  that  the   purchaser's   proposition   should  be   construed 
as  a  compliance  with  the  contract;  held,  proper.    John  E.  DeWolf 
Co.  v.  Harvey,  154  K  W.  988,  161  Wis.  535. 

(31)  Where  the  evidence  on  the  part  of  defendant,  in  a  bro- 
ker's action  for  commission,  was  that  it  was  agreed  between  plain- 
tiff, the  purchaser  and  himself,  that  the  contract  should  be  left 
with  him,  and  that  if  his  wife  would  sign,  or  accept  it,  it  should 
be  regarded  as  a  sale,  otherwise  not,  and  there  was  no  contention 
that  the  exact  terms  of  the  sale  were  agreed  upon  when  the  land 
was  listed,  an  instruction  that  if  plaintiff,  defendant  and  the  pur- 
chaser agreed  that  the  contract  should  be  left  with   defendant, 
who  would  accept  it  if  his  wife  would  sign  it,  and  his  wife  re- 
fused to  sign  it,  plaintiff  could  not  recover,  was  proper,  as  pre- 
senting the  issue  tendered  by  defendant.    J.  N.  Dunlop  &  Go.  v. 
Anderson,  133  N.  W.  910,  153  Iowa,  488. 


PLEADINGS,  PRACTICE,  ETC. 

(32)  In  an  action  by  a  broker  for  commissions  for  procuring 
a  purchaser  of  real  estate,  where  the  purchaser  testified  that  the 
broker  had  proposed  that  the  purchaser  and  the  broker  should 
buy  the  land  together,  and  the  broker,  to  some  extent,  corroborated 
the  purchaser,  a  charge  that  if  the  broker  proposed  to  the  pur- 
chaser that  they  should  buy  the  property  together,  there  could 
be  no  recovery,  was  justified  by  the  evidence.    Schlagle  v.  Russell, 
80  A.  164,  114  Md.  418. 

(33)  Instructions,  in  action  for  commissions  for  assisting  an 
exchange  of  property,  concerning  plaintiffs  as  acting  for  both  par- 
ties; held,  not  inconsistent.     T.  A.   Hill  &  Son  v.   Patton  & 
Schwartz,  160  S.  W.  1155,  —  Tex.  Civ.  App.  — . 

(34)  An  instruction  that  plaintiffs  could  recover,  if  they  pro- 
cured a  buyer  themselves,  or  through  their  agent  R.,  was  not  ob- 
jectionable on  the  ground  that  R.  was  the  buyer's  agent,  and  that 
an  agent  can  not  delegate  his  authority,  without  his  principal's 
consent,  and  can  not  represent  both  parties,  where  the  evidence 
showed  that  R.  represented  the  buyer  only,  and  the  brokers,  on 
both  sides,  represented  their  respective  principals  in  the  negotia- 
tions.    McEinney  v.   Thedford,  166   S.  W.  443,  —  Tex.   Civ. 
App.  — . 

(35)  An  instruction  that  plaintiffs,  suing  for  commission,  were 
not  partners  of  R.,  who  represented  the  other  party,  and  that 
they  may  recover,  though  R.  got  all  the  commission  from  the 
other  party,  was  not  objectionable,  on  the  ground  that  the  agent 
who  receives  secret  commissions  from  the  other  party  can  not  re- 
cover, where  the  evidence  showed  that  the  brokers  on  both  sides 
represented  their  respective  principals  only.     Id. 

(36)  An  instruction,  in  an  action  by  a  vendor  of  land  against 
a  broker  who  effected  a  sale,  for  damages  for  fraud  and  faithless- 
ness; held,  not  subject  to  objection  requiring  the  jury,  if  finding 
for  broker,  to  find  that  he  acted  in  good  faith.    Thomas  v.  Mohn, 
193  S.  W.  924,  —  Tex.  Civ.  App.  — . 

(37)  In  an  action  to  recover  commissions  for  services  in   a 
land  deal  involving  two  separate  transactions,  a  given  instruction 
held  not  an  instruction  to  find  for  plaintiff  in  the  sum  of  $1,280, 
or  finding  for  defendant,  but  amounted  to  an   instruction  that 
burden  was  on  plaintiff  to  prove  the  contract  alleged,  and  that 
she  had  performed  services  in  consummation  of  one  or  both  of 


826  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

deals  mentioned,  which  entitled  her  to  claim  commission  of  one 
dollar  per  acre  on  the  land  exchanged  by  defendant.  Kamp  v. 
Madison,  161  N.  W.  809,  —  S.  D.  Sup.  — . 

(38)  In  broker's  action  for  commission  against  owner,  instruc- 
tion that  plaintiff  must  prove  his  employment,  and  mere  fact  that 
he  asked  defendant  at  what  price  he  was  willing  to  lease  his  prop- 
erty, did  not  establish  relation  of  principal  and  agent;  held,  suffi- 
ciently favorable  to  defendant.    Symes  Inv.  Co.  v.  De  Sollar,  165 
P.  985,  —  Colo.  Sup.  — . 

(39)  In  an  action  by  broker  for  commission  for  procuring  an 
exchange  of  realty,  instruction  submitting  the  question  whether 
an  agreement  for  exchange  was  made,  and  making  the  right  to 
recover  dependent  on  affirmative  finding;  held  proper.     Lariham 
v.  Cockrell,  194  S.  W.  936,  aff.  judg.  Civ.  App.,  152  S.  W.  189, 
—  Tex.  Sup.  — . 

r(40)  In  a  broker's  action  for  commissions,  court  held  to  have 
properly  directed  a  verdict,  because  evidence  would  not  have  war- 
ranted an  inference  that  plaintiff  was  the  procuring  cause  of  the 
sale.  Huttig  v.  John  Paul  Lumber  Co.,  243  F.  539,  156  C.  C.  A. 
237. 

(41 )"  In  a  broker's  action  for  commissions  for  negotiating  a 
resale  of  land,  instruction  as  to  duress  as  a  species  of  fraud ;  held 
correct.  Snyder  v.  Samuelson,  167  N".  W.  287,  —  Minn.  Sup.  — . 

(42)  In  an  action  by  brokers  to  recover  of  defendant  broker 
half-commission   for  having   disclosed   to   him    a   purchaser   for 
property  of  which  he  was  the  exclusive  agent,  instruction  that, 
if  jury  found  plaintiffs  contracted  with  defendant  for  half-com- 
mission, it  was  not  necessary  for  them  to  have  produced  a  signed 
purchase  contract,  even  though  they  endeavored  to;  held,  proper 
and  necessary,  to  keep  the  real  issue  before  the  jury.     Baker  v. 
Bakewell,  208  S.  W.  844,  —  Mo.  App.  — . 

(43)  Brokers  employed  by  the  owner  of  city  property  to  ef- 
fect an  exchange  of  the  same  for  farm  land;  held,  not  middlemen, 
for  the  owner  of  the  city  property  authorized  them  to  receive 
from  the  owner  of  the  farm  land  note  for  the  exchange;  and 
hence,  where  they  misrepresented  to  the  owner  of  the  city  prop- 
erty the  price  of  the  farm  land,  an  instruction,  in  an  action  to 
recover  secret  profits  thus  obtained,  was  not  objectionable  in  fail- 


PLEADINGS,  PRACTICE,  ETC.  827 

ing  to  present  the  question  whether  such  brokers  were  middlemen. 
Schmidt  v.  Wallinger,  99  S.  E.  680,  125  Va.  361. 

(44)  In  broker's  action  for  commission  for  making  a  sale  of 
defendant's  farm,  it  was  proper  to  state  to  the  jury  that  if  evi- 
dence showed  an  agreement  for  compensation  as  claimed  by  de- 
fendant, the  verdict  should  be  for  him.    Mooney  v.  Burgess,  172 
N.  W.  308,  —  Minn.  Sup.  — . 

(45)  Instruction  that  burden  was  upon  plaintiff  to  show,  by 
a  fair  preponderance  of  evidence,  that  he  was  to  receive  a  com- 
mission per  acre,  as  he  claimed,  was  not  erroneous.    Id. 

(46)  An  instruction  that  to  be  the  procuring  cause  of  the  sale, 
it  was  not  necessary  that  plaintiff  broker  himself  conclude  all  the 
negotiations  culminating  in  a  sale  of  the  property,  if  he  set  in 
motion  the  machinery  by  which  the  work  was  done,  was  well 
framed.    Finney  v.  Newson,  82  S.  441,  —  Ala.  Sup.  — . 

(47)  In  a  broker's  action  for  commissions,  on  sale  of  a  farm, 
an  instruction  that,  whether  the  listing  agreement  between  the 
parties  was  exclusive  or  not,  all  plaintiff  broker  had  to  do,  to 
earn  commission,  was  to  find  and  produce  a  purchaser  ready,  able 
and  willing  to  buy,  etc.,  was  not  objectionable  as  eliminating  the 
element  that  the  broker  must  be  the  procuring  cause  of  the  sale. 
Thomas  v.  Wychoff,  174  1ST.  W.  26,  —  Iowa  Sup  — . 

(48)  An  instruction,  that  if  a  broker  introduces  a  prospective 
purchaser  to  the  seller,  who  undertakes  to  conduct  the  negotia- 
tions, and  finally  sells  the  property,  he  thereby  waives  the  right  to 
insist  on  the  terms  of  the  contract  in  that  respect,  and  is  liable 
for  a  reasonable  commission,  and  the  contract  may  be  introduced 
as  a  guide  in  arriving  at  what  is  reasonable  compensation,  was 
well  framed.    Finney  v.  Newsom,  82  S.  441,  —  Ala.  Sup.  — . 

(49)  Where    plaintiff    purchased    land    which    defendants',    as 
brokers,  sold  for  the  owner;  held,  that  in  an  action  for  damages 
on  the  theory  that  defendants  represented  that  the  owner's  price 
was  $75  an  acre,  when,  in  fact,  it  was  only  $50,  and  by  such  fraud 
made  a  large  profit,  it  was  not  improper  for  the  court  to  add  to 
plaintiff's  requested  instruction,  submitting  the  question  of  false 
representation,  the  question  whether  the  representation  as  to  price 
was  made  without  the  knowledge  and  consent  of  the  owner.  Hays 
v.  Smith,  213  S.  W.  451,  —  Mo.  Sup.  — . 

(50)  An  instruction  that  it  was  conceded  defendants  told  plain- 


828  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

tiff  they  were  acting  as  owner's  agents,  and  that  any  statement 
by  them  as  to  what  the  owner  would  take  for  land  does  not  alone 
constitute  fraud;  held,  warranted.  Id. 

(51)  In  a  broker's  action  for  commission,  no  precise  form  of 
language  is  necessary  in  an  instruction,  it  is  only  necessary  that 
they  cover  the  idea  that  the  agent  must  have  been  the  procuring 
and  inducing  cause  of  the  sale.    Schnaber  v.  Estes,  218  S.  W.  908, 
—  Mo.  App.  — . 

(52)  In  an  action  by  a  broker  for  commission  for  effecting  a 
sale  of  land  for  defendants,  where  defendants  asserted  that  it  was 
the  understanding  between  the  parties  that  they  should  pay  only 
a  part  of  the  commissoin  and  that  the  purchaser  should  pay  the 
remainder,  and  that  they  signed  an  agreement  on  condition  that 
it  should  be  signed  by  the  purchasers,  a  requested  instruction  that 
a  broker  can  not  represent  both  parties,  without  their  mutual 
knowledge  and  consent;  held,  warranted.    Murphy  v.  Willis,  219 
S.  W.  776,  —  Ark.  Sup.  — . 

(53)  An  instruction,  that  if  the  jury  found  for  plaintiff,  they 
should  allow  her  such  sum  as  defendant  agreed  to  pay  out  of  the 
purchase  price,  though  it  might  have  been  better  worded,  conveys 
the  idea  that  plaintiff  could  receive  the  agreed  commission  based 
on  the  purchase  price,  if  a  sale  had  been  consummated.     Broivn 
v.  Russell,  221  S.  W.  791,  —  Mo.  App.  — . 

(54)  In    a   broker's   action   for   commission   in   which   owner 
claimed  brokerage  contract  provided  for  commission  only  if  land 
sold  for  price  in  excess  of  specified  amount,  instruction  that  jury 
should  find  for  the  owner,  if  the  agreement  required  broker  to  find 
a  purchaser  at  a  sum  that  would  yield  only  such  amount;  held, 
to  sufficiently  present  such  defense.     Kaufman  v.  Jean,  225   S. 
W.  239,  —  Ky.  Ct.  App.  — . 

(55)  In  agent's  action   for  commission,   an   instruction   that, 
where  two  agents  are  employed  to  find  a  purchaser,  and  each 
makes  an  effort  to  sell  the  property  to  the  same  person,  the  owner 
is  liable  to  the  one  "who  is  the  proximate,  efficient  and  procuring 
cause"  of  the  sale,  was  proper,  where  the  owner,  without  plain- 
tiff's knowledge,  sold  it  to  that  person  when  brought  to  him  by 
another  agent.    Osburn  v.  Moore,  193  P.  892,  —  Kan.  Sup.  — . 


PLEADINGS,  PRACTICE,  ETC.  829 

Sec.  1047g.    Instructions  improperly  given. 

(1)  In  an  action  to  recover  commissions  for  procuring  a  pur- 
chaser for  real  estate;  held,  that  the  direction  of  a  verdict  in  favor 
of  defendant  was  error  under  the  evidence.    Nudelman  v.  Haffen- 
berg,  185  111.  App.  91. 

(2)  In  a  broker's  action  for  commissions  against  A.,  where  evi- 
dence indicated  that  A.'s  broker  "E.",  who  claimed  to  own  the 
property,  though  the  record  title  was  in  A.,  was  the  person  who 
negotiated  with  the  broker,  instructions  were  erroneous,  as  making 
the  dummy  personally  liable  on  the  contract  as  a  matter  of  law. 
Rubin  v.  Ernst,  151  N.  Y.  Supp.  849. 

(3)  Instruction  that  if  the  owner  sold  in  breach  of  his  con- 
tract for  less  than  $13,000,  the  agent  was  entitled  to  his  commis- 
sion, was  misleading,  so  as  to  call  for  a  new  trial,  where,  after  the 
sale  a  rebate  to  the  purchaser  was  made  by  the  owner  for  a  short- 
age of  half  an  acre,  the  question  being  whether  the  land  was  sold 
for  $13,000.    Briggs  v.  Hall,  129  P.  288,  20  Cal.  App.  372. 

(4)  In  an  action  for  broker's  commission,  evidence  held  not 
to  sustain  an  instruction  requested.     Sholine  v.  Harris,  123  P. 
330,  22  Colo.  App.  63. 

(5)  Instruction  in  an  action  by  a  broker  for  his  commission; 
held,  ambiguous.    Hughes  v.  Kerr,  141  P.  510,  26  Colo.  App.  162. 

(6)  Where  an  intestate  was  to  receive  a  specified  sum  for  ser- 
vices in  assisting  in  getting  an  option  and  other  services  with  ref- 
erence to  certain  land,  an  instruction  that  defendant  agreed  to 
pay  intestate  for  getting  an  option  and  rendering  other  services 
in  consummating  a  sale  was  improper,  as  imposing  on  intestate 
duties  not  required  by  the  contract.     Smith  v.  Crane,  154  S.  W. 
857,  169  Mo.  App.  695. 

(7)  Where  brokers,  in  a  suit  for  commissions  for  inducing  an 
exchange  of  property,  alleged  that  they  were  employed  to  interest 
D.  in  making  an  exchange,  and  were  not  to  be  paid  unless  the 
exchange  was  made  on  terms  satisfactory  to  defendants,  an  in- 
struction authorizing  a  finding  in  plaintiff's  favor,  if  the  contract 
was  that  plaintiffs  should  induce  or  "attempt"  to  induce  D.  to 
make  the  exchange,  without  regard  to  whether  the  exchange  was 
made  after  "attempt"  on  defendants'  part  to  cancel  the  agency, 
etc.,  unless  the  jury  found  that  the  attempted  revocation  of  the 
agency  was  made  in  "entire"  good  faith,  was  objectionable  as  not 


830  AMERICAN  LAW   REAL   ESTATE   AGENCY. 

within  the  issues,  and  also  as  calculated  to  discredit  defendants' 
theory  of  the  transaction  by  the  use  of  the  word  "entire,"  and 
cause  the  jury  to  infer  that  their  good  faith  must  have  been  proved 
by  more  satisfactory  testimony  than  was  required  to  prove  other 
facts.  T.  A.  Hill  &  Son  v.  Patton  &  Schwartz,  141  S.  W.  1025, 

—  Tex.  Civ.  App.  — . 

(8)  In  an  action  by  a  broker  for  commission,  instruction  au- 
thorizing a  recovery  and  refusal  of  a  requested  charge  on  the  sub- 
ject; held,  reversible  error.    Arlington  v.  Layden,  175  S.  W.  475, 

—  Tex.  Civ.  App.  — . 

(9)  In  an  action  for  brokerage  commission  for  procuring  pur- 
chaser for  real  estate  belonging  to  defendant's  mother,  an  instruc- 
tion that  the  question  of  ownership  of  the  property  was  "altogether 
immaterial" ;  held  misleading,  when  the  controverted  issues  of  fact 
were,  whether  plaintiff  did  not  know  that  defendant  was  acting 
merely  as  agent  of  the  owner  in  the  transaction,  and  whether  de- 
fendant made  any  personal  promise  to  pay  the  commission.   Yuck- 
man  v.  Considine,  191  111.  App.  192. 

(10)  As  defendant  is  entitled  to  have  an  oral  instruction  given 
presenting  his  theory  of  defense,  that  there  could  be  no  recovery 
for  broker's  commission  if  he  was  not  the  owner  of  the  property 
nor  authorized  to  offer  it  for  sale,  and  plaintiff  so  knew  prior  to 
his  negotiations  with  the  purchaser.    Id. 

(11)  In  an  action  by  an  agent  for  a  commission  provided  for 
in  an  application  for  a  loan,  prepared  by  him  and  read  to  de- 
fendant, where  the  defendant  claimed  that  the  contract  was  in- 
duced by  the  agent's  fraud  in  not  reading  these  parts  providing 
for  a  commission,  the  plaintiff  claimed  that  before  the  defendant 
took  any  steps  under  the  contract,  plaintiff  sent  defendant  a  letter 
referring  to  the  commission  and  explaining  everything,  it  was  a 
question  for  the  jury  whether  a  new  contract  was  made,  regardless 
of  the  application,  and  an  instruction  that  the  agent  was  entitled 
to  recover  if  the  defendant  received  the  letter  was  erroneous.   Car- 
roll v.  Park,  136  S.  W.  961,  156  Mo.  App.  446. 

(12)  In  an  action  for  commission,  instruction  disregarding  the 
discharge  of  agent  before  sale;  held,  erroneous.     Graf  &   Case 
Realty  Co.  v.  Lovell,  163  S.  W.  877,  180  Mo.  App.  706. 

(13)  In  an  action  for  a  broker's  commission  for  procuring  a 
tenant   for   defendant's   premises,    an   instruction   that   plaintiff 


PLEADINGS,  PRACTICE,  ETC.  831 

should  recover  if  defendant  agreed  to  pay  the  plaintiff  a  commis- 
sion for  securing  a  tenant,  and  plaintiff  secured  such  tenant  and 
introduced  him  to  defendant  "for  the  purpose  and  with  the  intent 
of  leasing  the  premises  in  question,  for  a  period  of  ten  years,"  and 
that  afterward  the  defendant  did  rent  such  premises  to  that  per- 
son, or  if  no  contract  Wb,s  made  between  plaintiff  and  defendant, 
that  plaintiff,  with  the  consent  of  defendant,  procured  a  tenant 
for  the  premises,  and  defendant  accepted  such  services,  was  mis- 
leading, as  the  intent  of  the  broker  in  introducing  the  prospective 
tenant  was  not  a  sufficient  basis  for  a  recovery,  in  the  absence  of 
a  contract  to  pay  a  commission,  and  a  showing  that  the  party  in- 
troduced was  able  and  willing  to  make  a  lease  for  tenant.  Floore 
v.  J.  T.  Burgher  &  Co.,  142  S.  W.  939,  —  Tex.  Civ.  App.  — ., 
judg.  aff.,  174  S.  W.  819,  —  Tex.  Sup.  — . 

(14)  In  an  action  for  broker's  commission  for  selling  realty, 
a  requested  charge  making  the  right  to  recover  dependent  upon 
defendant's  accepting  conditions  that  he  would  be  required  to  pay 
a  commission,  was  objectionable.     Toland  v.  Williams  &  Wiley, 
129  S.  W.  392,  —  Tex.  Civ.  App.  — . 

(15)  In  an  action  for  commissions,  an  instruction  that  if  the 
original   contract   "was   changed   by   mutual   agreement   for   the 
mutual  advantage  of  both  parties,"  was  misleading,  as  permitting 
an  application  that  the  modified  contract  might  not  have  been 
binding,  because  not  as  favorable  to  plaintiff  as  the  original  con- 
tract.    Bailey  v.  Spalding -Livingston  Inv.  Co.,  136  P.  962,  43 
Utah,  535. 

(16)  In  an  action  for  commissions;  held,  error  to  instruct  on 
the  theory  that  the  owner,  by  accepting  a  check  in  part  payment, 
ratified  the  broker's  contract  of  sale  with  the  prospective  pur- 
chaser, of  which  the  owner  had  not  been  advised,  and  that  he  had 
never  signed.     Cardozo  v.  Middle  Atlantic  Emi.  Co.,  82   S.  E. 
80,  116  Va.  342. 

(17)  Refusal  to  instruct  that  if  the  owner  originally  authorized 
a  sale  on  certain  terms,  and  subsequently  accepted  prospective 
purchaser's  check  for  collection,  giving  a  receipt,  stating  the  terms 
of  payment  of  the  commission,  such  papers  constituted  the  only 
contract,  and  there  could  be  no  recovery  unless  failure  to  collect 
the  check  was  due  to  the  defendant's  fault;  held,  improper.     Id. 

(18)  In  a  broker's  action  for  commission,  there  was  evidence 


832  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

to  warrant  a  finding  that  his  efforts  to  make  a  sale  failed,  and 
that  it  was  finally  made  to  the  same  party  by  another  broker  with 
whom  defendants  had  made  a  like  contract,  a  refusal  of  charges 
that  if  the  second  broker  induced  the  buyer  to  purchase,  after 
plaintiff  had  failed  to  do  so,  verdict  should  be  for  the  defendants, 
was  error.  Scott  v.  Cleveland,  183  S.  W.  197,  122  Ark.  259. 

(19)  Instruction  to  the  jury  to  find  for  owner,  unless  they  be- 
lieved, from  the  evidence,  that  the  agent  had  established,  by  a 
preponderance  of  the  evidence,  that  agent  named  terms  to  a  pur- 
chaser, who  was  ready,  willing  and  able  to  accept;  held,  improper. 
Hurling  v.  Frey,  182  111.  App.  547. 

(20)  Where  the  price  at  which  a  broker,  without  an  exclusive 
agency,  could  sell,  was  not  fixed,  it  was  error  to  instruct  that  it 
was  immaterial  that  the  owner  did  not  know  that  the  prospective 
purchaser  had  corresponded  with  the  broker,  if  the  broker  pro- 
cured a  purchaser 'able  and  willing  to  buy.     Seevers  v.  Cleveland 
Coal  Co.,  138  N".  W.  703,  158  Iowa,  574,  Ann.  Gas.  1915  D,  188. 

(21)  Where  there  was  evidence  that  a  purchaser  found  by  a 
broker  was  not  disclosed  to  the  owner,  an  instruction  that  if  the 
broker  "procured"   a  purchaser,   the   verdict   should  be  for  the 
broker,  was  misleading.    Coppage  v.  Howard,  96  A.  642,  127  Md. 
512. 

(22)  In  an  action  for  a  broker's  commission  for  furnishing  a 
purchaser  for  defendant's  farm,  the  actual  sale  of  the  premises 
being  conducted  by  defendant,  without  assistance  from  plaintiff, 
an  instruction  directing  a  finding  for  plaintiff,  which  omits  any 
hypothesis  of  his  being  the  procuring  cause,  and  submits  whether 
defendant,  after  plaintiff  entered  into  negotiations  with  the  pur- 
chaser, himself  entered  into  negotiations  directly  with  the  pur- 
chaser, as  a  subterfuge  to  avoid  the  payment  of  commission,  is 
error,  there  being  no  evidence  of  defendant  adopting  a  subterfuge. 
Subletie  v.  Lowe,  133  S.  W.  127,  152  Mo.  App.  186. 

(23)  In  an  action  for  a  broker's  commission,  where  the  court 
had  given  instructions  covering  every  phase  of  the  case,  it  was 
error  to   instruct  that,   before   plaintiff  could   recover,   he   must 
show,  by  the  greater  weight  of  the  evidence,  that  he  was  the 
"prime  cause"  of  the  purchase,  as  the  jury  might  infer  from  the 
use  of  the  word  "prime"  that  the  cause  must  be  first  in  order  of 
time  originally,  and  that  something  more  definite  was  meant  than 


PLEADINGS,  PRACTICE,  ETC.  833 

was  included  in  the  other  instructions  as  to  the  "procuring" 
cause.  8.  J.  Cox  Real  Estate  Co.  v.  French,  142  S.  W.  449,  160 
Mo.  App.  678. 

(24)  In  an  action  by  a  broker  for  compensation,  where  it  ap- 
pears that  a  second  broker  had  assisted  in  the  deal,  an  instruction, 
that  if  the  trade  was  solely  made  by  the  second  broker  and  the 
defendant  had  paid  him  a  commission,  then  plaintiff  could  not 
recover,  is  misleading,  since  the  payment  of  the  second  broker 
could  not  affect  plaintiffs  rights.     Weidemeyer  v.  Woodrum,  154 
S.  W.  894,  168  Mo.  App.  716. 

(25)  An  instruction,  in  an  action  by  a  broker  for  commission; 
held  erroneous,  as  tending  to  mislead  the  jury  to  believe  that  the 
sale  must  have  been  completed  within  the  time  limited  by  the 
option,  in  order  for  the  broker  to  recover.     Cole  v.  Crump,  156 
S.  W.  769,  174  Mo.  App.  215. 

(26)  In  action  for  commission  for  obtaining  a  loan  for  con- 
tractors of  Fidelity  Co.,  instruction  held  erroneous,  as  submitting 
loan  of  a  different  character  from  that  claimed  to  have  been  ob- 
tained by  plaintiff.    Bartlett  v.  Garrett,  175  S.  W.  79,  188  Mo. 
App.  144. 

(27)  An  instruction  permitting  verdict  in  belief  of  plaintiff's 
own  testimony  was  erroneous,  the  instruction  should  have  sub- 
mitted the  question  of  plaintiff's  procuring  cause.    Id. 

(28)  A  requested  instruction  denying  recovery  of  commission 
on  a  sale  of  machinery  and  lease  of  a  mill,  by  the  negotiations 
temporarily  ended;  held,  erroneous.     Nat.  Milling  Co.  v.  Kirby, 
94  A.  149,  —  R.  I.  Sup.  — . 

(29)  Where,  in  an  action  for  broker's  commission,  defendant 
claimed  that  he  had  paid  a  commission  to  H.,  who  was  the  pro- 
curing cause  of  the  sale,  an  instruction  that  if,  after  plaintiffs 
carried  the  purchaser  to  see  defendant's  land,  they  returned  to 
town  and  did  not  close  the  deal,  and  the  purchaser  subsequently 
returned  and  purchased  the  land  from  H.,  the  jury  should  find 
for  defendant,  provided  plaintiffs  had  not  shown,  by  a  prepon- 
derance of  the  evidence  that  they  had  an  exclusive  agency  for  the 
sale  of  the  land,  was  improperly  allowed,  without  a  further  quali- 
fication that,  if  the  jury  believed  the  plaintiffs'  act  in  showing 
land  to  the  purchaser  was  not  the  proximate  cause  of  the  sale 


834  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

being  made  by  defendant  to  such  purchaser.    Stephenson  v.  Jack- 
son, 128  S.  W.  1196,  —  Tex.  Civ.  App.  — . 

(30)  Evidence  held  not  to  justify  peremptory  instruction  for 
the  broker  suing  for  a  commission,  where  there  was  evidence  that 
he  was  to  have  no  commission  unless  a  sale  was  consummated, 
and  it  did  not  indisputably  appear  that  the  failure,  to  consum- 
mate the  sale  was  due  to  the  owner's  fault.    Heath  v.  Hoffhines, 
152  S.  W.  176,  —  Tex.  Civ.  App.  — . 

(31)  In  an  action  by  a  broker  for  commissions  for  procuring 
a  purchaser,  a  charge  directing  the  jury's  attention  to  the  acts 
of  defendant's  wife,  as  determining  the  plaintiff's  right  to  a  com- 
mission ;  held  improper,  as  being  misleading.    Alexander  v.  Smith, 
61  S.  68,  180  Ala,  541. 

(32)  Where  an  owner  claimed  that  the  prospective  purchaser, 
upon  examination  of  the  abstract,  refused  to  complete  the  pur- 
chase under  any  circumstances,  an  instruction  held  erroneous,  as 
denying  owner  a  reasonable  time  within  which  to  correct  defects 
in  his  title.    Bunyard  v.  Farman,  161  S.  W.  640,  176  Mo.  App.  89. 

(33)  In  broker's  action  for  commission  on  a  sale  which  the 
purchaser  failed  to  complete,  instruction  making  owner's  duty  to 
sue  to  enforce  the  contract  dependent  entirely  upon  the  advice 
given  him  by  his  counsel;  held  improper.     Middle  Atlan.  Emi. 
Co.  v.  Ardon,  78  S.  E.  588,  115  Va.  148. 

(34)  In   an   action   for   commission,    instruction   that   broker 
could  not  sue  to  compel  the  purchaser  to  perform  the  contract 
negotiated  by  the  broker  was  erroneous.     Cardoso  v.  Middle  Atl. 
Emi.  Co.,  82  S.  E.  80,  116  Va.  342. 

(35)  The  instructions,  in  a  brokers'  action  for  commissions  for 
procuring  an  exchange  of  real  estate,  should  have  submitted  the 
question  of  the  owner's  consent  to  the  broker  acting  as  agent  for 
both  parties,  where  the  evidence  raised  that  question.     Goldsberry 
v.  Thomas,  165  S.  W.  1179,  178  Mo.  App.  334. 

(36)  Proof  that  a  real  estate  broker  declared  an  intention  to 
withhold  certain  material  information  from  his  principal,  without 
proof  of  actual  expression  of  such  information  or  of  the  vendor's 
ignorance   thereof;   held,  not  to   authorize   an   instruction   pro- 
pounding an  inquiry  as  to  the  broker's  bad  faith.    Peters  v.  Eiley, 
81  S.  E.  530,  73  W.  Va.  785. 

(37)  In  an  action  for  a  broker's  commission  in  procuring  an 


PLEADINGS,  PRACTICE,  ETC.  835 

exchange  of  real  estate,  where  there  was  no  special  agreement  as 
to  the  rate  of  commission,  an  oral  charge  to  the  jury  that,  if  they 
found  the  issue  for  plaintiff,  their  verdict  must  be  for  a  certain 
sum  computed  at  a  certain  rate  on  the  trade  value;  held,  error 
under  the  testimony.  Hovey  v.  Matteson,  188  111.  App.  486. 

(38)  Where,  in  an  action  for  broker's  commission,  it  was  shown 
that,  after  the  deal  was  closed,  plaintiff  requested  defendant  to 
mail  her  a  check  for  $250  as  her  commission,  not  shown  to  have 
been  merely  an  offer  of  compromise,  it  was  error  to  charge,  that 
if  the  jury  found  for  plaintiff,  their  verdict  must  be  for  $750  and 
interest,  on  the  theory  that  all  the  evidence  showed  that  such  was 
the  customary  commission.    O'Donnell  v.  McElroy,  138  S.  W.  674, 
157  Mo.  App.  547. 

(39)  An  instruction  to  find  for  plaintiff  in  the  amount  agreed 
upon  with  his  principal;  held  erroneous,  where  the  amount  was 
undisputed.    Tull  v.  Starmer,  176  S.  W.  511,  188  Mo.  App.  713. 

(40)  Where,  in  a  suit  for  broker's  commissions,  plaintiff's  coun- 
sel gave  notice  that  he  elected  to  base  plaintiff's  right  to  recover 
on  a  quantum  meruit,  and  the  testimony  varied  as  to  the  amount 
on  which  commission  should  be  based,  and  as  to  the  reasonable 
value  of  the  services,  the  court  erred  in  instructing  that  plaintiff's 
claim  was  for  services  on  an  agreed  compensation,  and  in  omit- 
ting to  submit  the  question  of  reasonable  value  to  the  jury.    Whit- 
ten  v.  Griswold,  118  P.  1018,  60  Or.  318. 

(41)  Where  there  was  no  express  contract  to  pay  plaintiff  a 
specified  amount  for  services  in  procuring  a  purchaser  for  realty, 
so  that  he  was  only  entitled  to  recover  upon  an  implied  contract 
for  the  reasonable  value  of  such  services,  if  at  all,  it  was  error 
not  to  so  charge  in  an  action  for  commission.    Toland  v.  Williams 
&  Wiley,  120  S.  W.  392,  —  Tex.  Civ.  App.  — . 

(42)  In  a  broker's  action  for  commission;  held,  entitled  to  in- 
struction on  issue  of  his  want  of  notice  that  buyer  was  procured 
by  plaintiff,  the  several  portions  of  general  charge  referring  to 
such  issue  being  too  narrow  under  the  evidence.    Fawley  v.  Shel- 
don, 163  N.  W.  585,  —  Iowa  Sup.  — . 

(43)  Evidence  in  an  action  for  commission  on  an  exchange  of 
lands;  held,  not  to  warrant  an  instruction  on  adoption  by  ratifica- 
tion of  defendant  of  plaintiffs'  act  in  finding  a  purchaser.    Ander- 
son v.  Walters,  194  S.  W.  1153,  —  Tex.  Civ.  App.  — . 


836  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

(44)  Instruction  that  burden  was  on  broker  to  show  that  de- 
fendant listed  land  for  sale  at  agreed  commission,  and  that  the 
broker  found  a  purchaser  ready,  willing  and  able  to  buy  at  stipu- 
lated price,  does  not  cover  the  ground  of  performance,  for  instruc- 
tion that  broker  could  not  recover  if  sale  was  on  terms  different 
from  those  named  by  defendant.     Cooper  v.  Lyman,  194  S.  W.  3, 
—  Ark.  Sup.  — . 

(45)  In  an  action  by  a  broker  to  recover  a  stipulated  commis- 
sion   for    an    exchange    of   real    estate    between    defendants    and 
others;  held,  that  a  verdict  for  defendants  should  have  been  in- 
structed under  the  evidence.    Zurek  v.  Ferfeckl,  199  111.  App.  587. 

(46)  Where  broker  authorized  to  sell  realty  on  certain  terms 
negotiated   less   favorable   contract,   which   was   entered   into   by 
owner  an  agreement  that  difference  was  to  be  paid  out  of  broker's 
commissions,   instruction   that   owner  must   pay   full   amount   of 
commission  while  permitting  broker  to  act  as  his  agent;  held, 
reversible.    Paulson  v.  Reeds,  167  1ST.  W.  371,  —  N.  D.  Sup.  — . 

(47)  In   action   for  commission,   evidence  held   insufficient  to 
disclose  any  bad  faith  or  fraudulent  practice  of  broker,  so  as  to 
warrant  an  instruction  as  to  good  faith  on  the  part  of  agent 
toward  his  principal.    Raleigh  Real  Estate  Co.  v.  Noser,  95  S.  E. 
498,  175  N".  C.  255. 

(48)  In  a  broker's  action  for  commissions,  where  there  was  no 
contract  upon  which  defense  was  founded  other  than  the  express 
contract  upon  which   broker  had  based   claim,   instruction   that 
burden  of  proving  a  "special  contract,"  was  not  to  be  paid  if 
deal  did  not  go  through  was  upon  defendants;  held,  erroneous. 
JacTcson  v.  Kohler,  124  N.  E.  650,  —  111.  Sup.  — . 

(49)  Instruction  that  owner  of  realty  is  responsible  for  fraudu- 
lent representations  of  broker  with  whom  defendants  listed  for 
sale,  though  owner  did  not  instruct  broker  to  make  such  repre- 
sentations and  did  not  know  that  they  were  being  made,  was  er- 
roneous.   Ringer  v.  Wilkins,  183  P.  986,  —  Idaho  Sup.  — . 

(50)  In  broker's  action  for  commission,  founded  upon  a  spe- 
cial contract  and  involving  dispute  as  to  terms  thereof,  instruction 
based  upon  a  "hiring  contract  made  without  any  conditions,  the 
broker  employed  in  the  usual  way";  held  misleading,  since  in- 
struction should  have  been  based  on  a  particular  contract.   Hope- 


PLEADINGS,  PRACTICE,  ETC.  837 

well  Heights  Dev.  Co.  v.  Kagey-Marshall  Realty  Co.,  102  S.  E. 
82,  —  Va.  Sup.  — . 

(51)  In  a  broker's  action  for  commission  involving  questions 
of  whether  the  broker  was  the  procuring  cause,   instruction  to 
find  for  broker,  if  he  was  "instrumental"  in  bringing  the  owner 
and  purchaser  together;  held,  erroneous,  in  that  broker  is  per- 
mitted thereby  to  recover  commission  on  sale  with  which  he  was 
only  remotely  connected,  and  which  was  not  induced  or  procured 
by  his   efforts,   since   broker  may  be   "instrumental"    in   selling 
property,  without  having   anything  to   do   with   finding  a  pur- 
chaser, so  as  to  be  the  procuring  cause  thereof.    Low  v.  Paddock, 
220  S.  W.  969,  —  Mo.  App.  — . 

(52)  In  broker's  action  for  compensation  for  procuring  party 
to  land  exchange  transaction,  instruction  that  broker  could  not 
recover  railroad  fare  and  expenses  on  trip  to  show  the  properties 
to  be  exchanged  to   defendant;   held,   misleading.     Morrison   v. 
Jackson  85  S.  573,  —  Ala.  App.  — . 

Sec.  1047h.    Instructions  properly  refused. 

(1)  The  refusal  of  an  instruction  on  plaintiff's  right  to  re- 
cover commission  sued  for;  held,  not  error.     Glaum  v.  STcang,  152 
N.  W.  760,  129  Minn.  377. 

(2)  Where  a  broker  suing  for  compensation  alleged  a  contract 
fixing  no  time  for  completion,  instructions,  with  some  support  in 
evidence,  on  the  theory  that  defendant  withdrew  the  land  from 
sale,  and  so  notified  the  purchaser,  were  properly  refused  under 
the  answer,  pleading  an  agreement  which,  defendant  claimed,  ex- 
pired by  limitation  of  time  without  performance,  but  not  averring 
rescission  of  the  contract  alleged  by  the  broker  and  the  giving  of 
notice  thereof.    Hall  v.  Olson,  114  P.  638,  58  Or.  464. 

(3)  Plaintiffs,  who  were  authorized  to  sell  land  for  defendants, 
were  not  parties  to  a  written  contract  between  defendants  and  the 
purchaser,  alleged  to  have  been  written  in  the  form  of  an  agency 
contract  to  sell,  binding  the  purchasers  to  purchase  the  land  un- 
sold after  specified  time,  in  order  to  deprive  plaintiffs  of  their 
right  to  commissions.     Held,  that  a  requested  charge  that  if  the 
jury  did  not  believe  that  the  purchaser  contracted  to  purchase  the 
lands  from  defendants,  and  that  defendants  conspired  to  write 
the  contract  in  the  form  adopted,  in  order  to  defraud  plaintiffs 


838  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

out  of  their  commission,  the  jury  should  find  for  defendants,  was 
properly  refused  as  erroneously  requiring  plaintiffs  to  prove,  as  a 
condition  of  their  right  to  recover,  that  the  written  contract  was 
prepared  to  cheat  and  defraud  them,  and  their  cause  of  action 
being  complete  on  proof  that  their  purchaser  agreed  with  the 
owner  to  buy  on  the  terms  authorized,  and  was  ready,  willing  and 
able  to  do  so,  independent  of  the  written  agreement.  Pope  v. 
Ansley  Realty  Co.,  135  S.  W.  1103,  judg.  rev.,  151  S.  W.  525,  105 
Tex.  440. 

(4)  An  instruction  involving  the  good  faith  of  the  principal 
in  revoking  the  authority  of  the  broker;  held,  properly  refused. 
Howard  v.  Street,  93  A.  923,  125  Md.  289. 

(5)  In  a  broker's  action  for  commission,  instructions  as  to  the 
necessity  that  prospective  purchaser  be  able  to  complete  purchase; 
held,  properly  refused  as  misleading,   in  view  of  the   evidence. 
Rike  v.  McHugh  <&  Groom,  66  S.  452,  188  Ala.  237. 

(5a.)  In  an  action  for  brokerage  commissions  on  an  exchange  of 
real  estate,  a  requested  instruction  based  on  the  theory  that  the 
contract  consummated  between  the  defendant  and  purchaser  was 
wholly  different  from  the  contract  contemplated  between  the  bro- 
ker and  the  purchaser;  held,  properly  refused,  the  contract  of  ex- 
change not  being  wholly  different  from  the  contract  as  contem- 
plated between  the  broker  and  purchaser.  Waddell  v.  Noser,  188 
111.  App.  302. 

(6)  A  requested  instruction  that  a  person  employed  to  make 
a  sale  of  property  is  not  entitled  to  a  commission,  where  he  is 
not  the  efficient  cause  of  the  consummation  of  the  transaction; 
held,  properly  refused,  as  tending  to  cause  the  jury  to  believe  that 
plaintiff   was   not   entitled   to   recover,    unless    he    had    directly 
brought  about  the  trade  exactly  as  consummated.    Id. 

(7)  Instruction  in  a  broker's  action  for  commission  as  to  the 
procuring  cause  of  the  sale;  held,  properly  refused,  in  view  of 
the  indefiniteness  resulting  from  the  unexplained  use  of  the  word 
"contributed."    G.  L.  &  H.  J.  Gross  v.  Tillinghast,  86  A.  721,  35 
E.  I.  298. 

(8)  Defendant's  requested  instruction  in  an  action  for  commis- 
sion for  obtaining  a  purchaser  for  land  who,  after  making  a  pay- 
ment, declined  to  consummate  the  purchase,  assigning  as  a  reason 
that  the  land  did  not  all  lie  in  one  body,  that  unless  owner  or 


PLEADINGS,  PBACTICE,  ETC.  839 

someone  authorized  by  him  represented  to  the  purchaser  that  the 
land  lay  in  a  body,  or  ratified  such  representation,  if  such  was 
made,  plaintiff  could  not  recover,  was  properly  refused,  it  not  be- 
ing necessary,  as  assumed,  that  plaintiff,  or  someone  authorized  by 
him,  represented  that  the  land  so  lay,  etc.,  as  there  might  be  a 
recovery,  though  no  such  representation  was  made  by  any  one. 
Agee  v.  Messer-Moore  Ins.  &  R.  E.  Co.,  51  S.  829,  165  Ala.  291. 

(9)  Where,  in  an  action  for  broker's  services  in  negotiating  an 
exchange  of  real  property,  the  evidence  showed  an  unconditional 
and  enforceable  contract,  the  court  did  not  err  in  refusing  to 
charge,  that  if  the  sale  was  not  performed  by  the   purchaser, 
through  no  fault  of  defendant,  plaintiff  could  not  recover.     Teve- 
baugh  v.  Smith  Land  Co.,  163  S.  W.  664,  —  Tex.  Civ.  App.  — . 

(10)  Instruction  authorizing  recovery  by  broker  if  the  failure 
to  carry  out  the  contract  of  sale  was  due  either  to  the  fault  of 
the  owner  of  the  purchaser;  held,  properly  refused,  as  the  owner 
could  not  be  held  liable  for  the  default  or  misconduct  of  the  pur- 
chaser.   Middle  Atlan.  Emi.  Co.  v.  Ardan,  78  S.  E.  588,  115  Va. 
148. 

(11)  Instruction  as  to  broker's  duty  to  sue  for  the  enforcement 
of  a  contract,  and  as  to  his  liability  where  the  purchaser  failed 
to  carry  out  the  contract;  held,  properly  refused.    Id. 

(12)  In  an  action  for  commissions  for  procuring  a  purchaser 
for  real  estate,  the  refusal  of  an  instruction  assessing  damages  as 
requested  was  proper,  where  the  amount  stated  was  more  than  the 
ad  damnum.    Miller  v.  Miller,  190  111.  App.  363. 

(13)  In  broker's  action  against  owners  for  commission,  a  re- 
quested instruction  that  broker  serving  both  parties  could  not  re- 
cover, etc.,  held,  not  required  by  evidence  that  plaintiff  referred 
to  prospective  tenant  as  his  client,  and  that  he  should  be  paid 
for  negotiating  the  sale  of  fixtures  between  such  tenant  and  the 
former  accupant,  where  no  commission  was  paid  or   demanded 
from  such  tenant.     Symes  Inv.  Co.  v.  De  Sollar,  165  P.  985,  — 
Colo.  Sup.  — . 

(14)  The  refusal  of  an  instruction  that  if,  after  securing  con- 
tract to  make  lease  of  theater,  the  landowner  hired  broker's  agent, 
etc.,  was  not  error  where  the  commission  was   payable  to  the 
brokers  and  not  to  their  agent,  for  such  employment  could  not 


840  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

release  obligation  for  payment  of  commission.     Brady  v.  Rickey 
&  Casey,  202  S.  W.  170,  —  Tex.  Civ.  App.  — . 

(15)  In  an  action  by  a  broker  for  compensation  for  an  ex- 
change, which  failed  because  of  defects  in  title,  a  requested  in- 
struction using  the  word  "complete"  abstract,  which  was  not  in 
the  agreement  to  furnish,  was  properly  refused,  the  parties  iiav- 
ing  understood  that  there  were   one  or  more   incumbrances   on 
each  piece  to  be  exchanged,  that  the  phrase  "complete"  abstract 
might  have  instructed  the  jury  that  a  perfect  title  was  required. 
Empire  Sec.  Co.  v.  Webb,  81  S.  51,  —  Ala.  Sup.  — . 

(16)  Evidence  held  to  show  that  after  the  agreement  for  the 
broker  to  stand  aside  and  let  the  principals  complete  the  negotia- 
tions begun,  the  defendant  did  not  consider  the  agency  terminated, 
but  stated  that  a  commission  would  be  paid,  so  that  a  peremptory 
instruction  for  defendant  was  properly  refused.     Kirby  Lumber 
Co.  v.  West,  220  S.  W.  639,  —  Tex.  Civ.  App.  — . 

(17)  In  an  action  for  broker's   commission   for  procuring  a 
purchaser  ready  and  able  to  buy,  though  the  owner  refused  to  sell, 
a  requested  instruction  that  the  burden  was  on  plaintiff  to  prove 
that  she  sold  defendant's  farm  was  erroneous,  and  properly  re- 
fused.   Brown  v.  Russell,  221  S.  W.  791,  —  Mo.  App.  — . 

(18)  In  a  broker's  action  for  compensation,  broker's  requested 
instruction  submitting  an  issue  of  the  case ;  held,  properly  refused 
as  misleading.    Morrison  v.  Jackson,  85  S.  573,  —  Ala.  Sup.  — . 

(19)  Instruction  as  to  broker  being  the  procuring  cause;  held 
misleading,  and  therefore  properly  refused.    Id. 

(20)  In  an  action  by  a  broker  employed  to  find  a  purchaser 
for  realty,  a  requested  instruction,  that  if  plaintiff  attempted  to 
interest  the  purchaser,  but  did  not  succeed  in  inducing  him  "to 
negotiate  with  the  owner"  for  its  purchase,  and  thereafter  the 
other  agents,  by  their  efforts,  effected  a  sale,  the  plaintiff  would 
be  entitled  to  the  commission,  which  the  jury  might  have  under- 
stood as  implying  that  plaintiff's  failure  to  introduce  the  pur- 
chaser to  the  owner  would  defeat  a  recovery,  was  properly  rejected. 
Osburn  v.  Moore,  193  P.  892,  —  Kan.  Sup.  — . 


CHAPTER  XVII. 

SECTTOI*. 

1048-1053c.     Findings  by  the  court. 
1054-1064d.    Verdicts. 
1065-1071<L     Judgments. 

Sec.  1048.    Finding  that  there  was  no  failure  of  consideration 
was  proper. 

Defendants  executed  two  notes  for  $385  in  payment  of  a  com- 
mission for  selling  land,  and  payable  only  in  the  event  that  the 
vendees  of  the  land  remained  on  it  for  one  year  and  made  im- 
provements equal  in  value  to  the  notes;  the  vendees  plowed  one 
hundred  acres  of  land,  which  increased  its  value  $2.50  per  acre, 
erected  buildings,  and  constructed  drainage  worth  $75,  and  a 
levee  worth  $64;  but,  with  the  consent  of  the  defendants,  to 
whom  they  executed  a  reconveyance,  abandoned  the  premises 
before  the  expiration  of  a  year.  Held,  that  a  finding  that  there 
was  no  failure  of  consideration  for  the  notes,  was  proper.  Easton 
Packing  Co.  v.  Kennedy,  131  Cal.  xviii,  63  P.  130. 

Sec.  1049.    Finding  that  there  was  no  agreement  to  pay  plain- 
tiff five  per  cent,  commission  was  proper. 

In  an  action  by  a  broker  for  services,  the  complaint  was  on 
a  quantum  meruit,  alleging  performance  of  services  reasonably 
worth  a  certain  sum;  the  evidence  showed  that  plaintiff,  in  a 
conversation  between  himself  and  defendant,  had  stated  that  his 
commission  rate  was  five  per  cent.,  but  nothing  further  was  said 
either  at  that  time  or  at  the  time  of  the  plaintiff's  employment 
by  the  defendant  with  reference  to  commissions ;  commissions  in 
general  were  shown  to  vary  from  three  to  five  per  cent,  depend- 
ing upon  the  amount  involved  and  the  circumstances.  Held,  that 
a  finding  that  there  was  no  agreement  to  pay  plaintiff  a  five 
per  cent,  commission  was  proper.  Burden  v.  Briquilet.  125  Wis. 

841 


842  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

341,  104  N.  W.  83;  Hatfield  v.  Holquist,  166  N.  W.  1068,  139 
Minn.  513. 

Sec.  1050.    Finding  for  plaintiff  on  one  count,  finding  against 
him  on  the  other. 

In  an  action  by  a  real  estate  broker  for  commissions,  the 
court 's  finding  for  plaintiff  on  the  count  of  his  complaint  relying 
on  an  express  contract  was,  in  effect,  a  finding  against  him  on 
the  count  on  a  quantum  meruit.  Willard  v.  Carrigan,  8  Ariz.  70, 
68  P.  538. 

Sec.  1051.    Finding  that  plaintiff  kept  back  part  of  the  loan 

equal  to  amount  of  two  mortgages  was  error. 
Defendant  applied  to  a  real  estate  agent  for  a  mortgage  loan. 
Three  unsatisfied  mortgages  were  to  be  paid  with  the  proceeds 
of  the  loan;  plaintiff  agreed  with  the  agent  to  make  the  loan, 
and  gave  the  agent  a  check  for  the  amount,  taking  a  mortgage 
on  the  property,  the  agent  assuring  him  that  he  would  search 
the  title  and  see  that  plaintiff  had  a  first  mortgage,  but  not 
informing  him  of  the  outstanding  incumbrances ;  on  execution  of 
the  mortgage,  defendant  instructed  the  agent  to  pay  off  the  three 
outstanding  mortgages  with  a  part  of  the  money  in  his  posses- 
sion ;  the  agent  paid  off  one  of  the  three  mortgages  only,  and 
appropriated  the  rest  of  the  money.  Held,  that  the  payment 
of  the  amount  of  the  loan  to  the  agent  was  a  payment  to  him 
as  agent  of  the  defendant,  and  a  finding  that  plaintiff  had  kept 
back  a  part  of  the  loan  equal  to  the  amount  of  the  two  mort- 
gages was  error.  Henker  v.  Schwicker,  174  N.  Y.  298,  66  N. 
E.  971 ;  affirming  73  N.  Y.  S.  656,  67  A.  D.  196.  See  also  Sec.269. 

Sec.  1052.    Finding  did  not  entitle  plaintiff  to  recover. 

In  an  action  for  commissions  for  selling  land,  the  court  found 
that  plaintiff  sold  a  lot  and  was  paid  his  commissions;  that  the 
other  lots  were  sold  by  defendants  to  B.  who  sold  them  to  R. 
and  that  R.  paid  plaintiff  a  commission  therefor;  that  at  R. 's 
request,  as  a  matter  of  convenience,  for  certain  reasons,  B.  con- 
veyed the  lots  back  to  defendant,  who  then  conveyed  them  to 


PLEADINGS,  PRACTICE,  ETC.  843 

K.,  but  defendant  in  nowise  made  itself  responsible  to  plaintiff 
for  any  commissions  on  the  sale.  Held,  that  tinder  the  finding 
plaintiff  was  not  entitled  to  recover.  Fortran  v.  South  End 
Land  Co.  (Tex.  Civ.  App.  '07),  105  S.  W.  323;  Sankey  v.  Cramer, 
131  P.  288,  24  Colo.  App.  16;  Baldino  v.  Hennelerry,  191  111. 
App.  368;  McKinney  v.  Thedford,  166  S.  W.  443,  —  Tex.  Civ. 
App.  — ;  Tulane  Educa.  Funds,  etc.  v.  Baccich  &  De  Montlugin, 
56  S.  371,  129  La.  469;  Friends  v.  Mahin,  202  111.  App.  140; 
'Pearson  v.  Wheeler,  180  P.  345,  —  Cal.  App.  — ;  Hollingsworth 
v.  N orris,  81  S.  782,  —  Fla.  Sup.  — ;  Smith  v.  Robinson,  214  S. 
W.  771,  —  Ky.  Ct.  App.  — ;  Campbell  v.  Vanetti,  181  P.  963,  — 
Nev.  Sup.  — ;  Levine  v.  Gray,  176  N.  Y.  Sup.  77;  Both  v.  Thom- 
son, 180  P.  656,  —  Cal.  App.  — . 

Sec.  1052a.    Finding  by  the  court  not  sustained  by  the  evi- 
dence. 

In  an  action  to  recover  commissions  earned  by  the  sale  of 
real  estate,  it  appeared  that  the  owner  gave  the  proposed  pur- 
chaser an  option  to  purchase  the  land  if  the  holder  of  a  prior 
existing  option  failed  to  purchase.  The  sale  was  made  to  a  party 
not  named  in  the  first  option,  but  who  claimed  the  right  to 
purchase  thereunder.  Held,  in  an  action  to  recover  commissions 
for  procuring  a  person  ready  to  buy  under  the  second  option, 
that  the  finding  that  the  party  to  whom  the  sale  was  in  fact 
made  was  not  entitled  to  purchase  under  the  first  option  was 
not  sustained  by  the  evidence.  Frye  v.  Wakefield,  107  Minn. 
291,  120  N.  W.  35;  Little  v.  Gorman,  114  P.  321,  39  Utah,  63; 
Mecwing  v.  Becker,  152  N.  Y.  Sup.  385,  166  App.  Div.  793. 

Sec.  1053.    Finding  that  broker  acted  for  defendant  was 
proper. 

In  an  action  for  deceit  arising  out  of  an  exchange  of  property, 
through  a  broker's  acting  for  defendant,  evidence  that  defend- 
ant stated  that  his  broker  made  a  mean  trade  for  him,  and  that 
he  had  made  a  poor  trade,  warrants  a  finding  that  such  broker 
was  acting  for  defendant  in  effecting  the  exchange.  Arnold  v. 
Teel,  182  Mass.  1,  64  N.  E.  413. 


844  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  1053a.    Erroneous  finding  that  defendant  was  indebted  to 
plaintiff. 

A  finding  by  the  court,  under  a  count  for  four  per  cent,  com- 
mission for  procuring  a  loan  of  $8,000  on  a  first  mortgage ;  that 
defendant  agreed  to  pay  such  commission;  that  plaintiff  unsuc- 
cessfully negotiated  with  a  member  of  a  firm  for  the  loan ;  that 
plaintiff  introduced  defendant  to  such  partner,  and  that  there- 
after, without  plaintiff's  knowledge,  defendant  procured  from 
such  partner  a  loan  of  $2,000  of  his  individual  funds  on  a 
second  mortgage,  will  not  support  a  conclusion  of  law  that  de- 
fendant was  indebted  to  plaintiff  for  $80,  "being  a  commission 
of  four  per  cent,  on  $2,000."  Diltz  v.  Spahr,  16  Ind.  App.  591, 
45  N.  E.  1066. 

Sec,  1053b.    Evidence  beld  insufficient  to  show  ability  of  pur- 
chaser to  pay  for  property  purchased. 

Where  a  broker  sues  for  commissions  for  procuring  a  pur- 
chaser able  to  purchase  on  defendant's  terms,  one  of  which  was 
a  cash  payment  of  $25,000,  evidence  that  the  purchaser's  assets 
consisted  of  a  stock  of  groceries,  the  value  of  which  is  not  known, 
and  a  cause  of  action  against  third  parties  for  $10,000  or  $12,000, 
for  money  loaned,  and  that  he  has  no  funds  in  his  possession; 
Held,  insufficient  to  show  the  purchaser's  ability  to  pay  $25,000 
cash.  Schnitzer  v.  Price,  106  N.  Y.  S.  767,  122  App.  Div.  409. 
See  also  Sec.  157. 

Sec.  1053c.    Findings  by  the  court. 

(1)  In  an  action  for  share  of  profits  on  purchase  of  land  in 
which  sellers  intervened,  evidence  held  to  show  that  plaintiffs 
were  agents  for  the  sellers  for  the  sale  of  the  land.    Fred  Brown 
&  Co.  v.  Cash,  145  N.  W.  80,  165  Iowa,  221. 

(2)  Evidence  in  an  action  for  commission  for  procuring  a  sale 
of  realty ;  held,  to  show  that  the  sale  was  not  made  in  a  reasonable 
time.    Alford  v.  CreagJi,  62  S.  254,  7  Ala.  App.  358. 

(3)  In  an  action  for  commissions  for  procuring  an  exchange 
of  realty,  evidence  held  to  sustain  a  finding  that  defendant  agreed 
to  pay  a  commission,  if  plaintiff  should  procure  some  one  willing 


PLEADINGS,  PRACTICE,  ETC.  845 

to  find  a  purchaser  or  one  who  would  exchange.     Simpson  v. 
Blewiti,  160  S.  W.  1087,  110  Ark.  87. 

(4)  Evidence,  in  an  action   for  commission  for  procuring  a 
sale  of  realty,  held  to  show  that  neither  exchange  nor  sale  was 
effected  by  the  broker.    Naylor  v.  Ashton,  130  P.  181,  20  Cal. 
App.  544. 

(5)  Broker's  testimony,  in  an  action  against  another  broker 
for  commission,  held  to  support  a  finding  of  a  contract  to  pay 
commissions,  notwithstanding  other  conflicting  testimony.     John- 
ston v.  Porter,  131  P.  69,  21  Cal.  App.  997. 

(6)  If  it  was  necessary  to  show  agent's  right  to  commission 
on  the  sale,  proof  that  he  was  entitled  to  such  commission  under 
an  agreement  with  a  third  broker,  who  had  a  contract  with  the 
owner,  was  sufficient.     Id. 

(7)  In  an  action  by  a  broker  for  commission  earned  by  nego- 
tiating lease,  evidence  held  sufficient  to  justify  finding  that  the 
agreement  to  pay  was  not  conditioned  upon  the  procuring  of  a 
lessee  who  would  not  require  the  lessor  to  install  a  vault  and 
steam  heating  apparatus.     Creditors'  Adjustment   Co.   v.   Rossi, 
148  P.  528,  26  Cal.  App.  725. 

(8)  In  an  action  brought  by  a  member  of  a  real  estate  firm 
in  his  own  name,  to  recover  his  share  of  a  commission  for  selling 
real  estate,  under  a  written  contract  between  defendant  and  the 
firm,  evidence  held  insufficient  to  show  a  parol  agreement  by  de- 
fendant to  pay  plaintiff,  individually,  his  share  of  the  commission. 
Lockett  v.  Zimmerman,  185  111.  App.  58. 

(9)  Evidence,  in  an  action  for  a  broker's  commission,  held  to 
show  that  the  exclusive  agency  granted  plaintiff  had  terminated. 
Rasor  &  Johnston  v.  Spurling,  184  111.  App.  357. 

(10)  In  an  action  for  commissions  for  procuring  a  purchaser 
for  real  estate,  evidence  held  to  show  that  the  plaintiffs  were 
verbally  authorized  to  sell  the  land,  that  they  found  a  purchaser 
ready,  willing  and  able  to  buy,  and  that  the  defendant  refused 
to  consummate  the  sale.     Schneider  v.  Commons,  190  111.  App. 
121. 

(11)  Where  a  broker  sued  to  recover  commission  for  effecting 
a  sale  of  real  estate,  evidence  held  insufficient  to  show  that  the 
owner  acted  in  bad  faith  in  selling  the  property  through  another 


846  AMERICAN  LAW  REAL  ESTATE  AGENCY, 

agent  sells  to  entitle  each  broker  to  a  commission.    Baldimo  v. 
Henneberry,  191  111.  App.  368. 

(12)  Where  each  of  two  brokers,  in  whose  hands  property  had 
been  placed  for  the  purpose  of  securing  a  tenant,  submitted  the 
name  of  the  same  person  as  a  prospective  tenant,  assent  of  the 
principal  to  protect  both  was  insufficient,  in  itself,  to  show  lia- 
bility to  the  one  not  actually  furnishing  a  tenant.     Thorpe  v. 
Carrier on-Schrofh  Co.,  191  111.  App.  455. 

(13)  In  an  action  by  a  real  estate  broker  for  commission  in 
negotiating  a  contract  for  an  exchange  of  defendant's  real  estate, 
evidence  held  to  show  that  plaintiffs  had  procured  the  execution 
of  a  valid  and  enforceable  contract,  and  to  support  a  recovery  of 
the  commissions  provided  for  in  the  contract.    Darby  v.  Gudich- 
son,  191  111.  App.  604. 

(14)  In  an  action  to  recover  commissions  for  services  in  ef- 
fecting an  exchange  of  real  estate,  evidence  held  to  show  that 
plaintiff  was  engaged  in  the  business  of  brokerage  as  an  occupa- 
tion, without  having  procured  a  license,  and  that  therefore  he  was 
not  entitled  to  recover.    Roman  v.  Daakel,  192  111.  App.  603. 

(15)  Evidence  held  sufficient  to  show  that  party  employing 
broker  was  liable  in  fact,  although  she  was  acting  as  referee  in 
selling  the  land.    Jones  v.  Ford,  134  N.  W.  569,  154  Iowa,  549. 

(16)  Evidence  held  sufficient  to  sustain  a  finding  that  the  con- 
tract with  the  broker  for  commissions  did  not  contemplate  an 
agreement  afterwards  made  by  the  owner  with  another  for  the 
survey  and  sale  of  the  property.     May  v.  Brackett,  140  N.  W. 
209,  159  Iowa,  101. 

(17)  In  an  action  for  commissions  for  procuring  a  purchaser 
for  property,  evidence  held  not  to  show  that  defendant  made  a 
pretended  sale  to  another,   and  through  him  to   the   purchaser 
whom  plaintiff  had  procured,  for  the  purpose  of  defrauding  plain- 
tiff of  his  commission.     Beamer  v.  Siuber,  145  N.  W.  936,  164 
Iowa,  309. 

(18)  Evidence  held  to  support  a  finding  that  defendant  en- 
gaged plaintiff  to  procure  an  exchange  of  his  land,  that  plaintiff 
brought  defendant  and  another  together,  and  that  they  entered 
into  a  contract  for  the  exchange,  defendant  not  then  objecting  to 
a  mineral  lease  on  the  other  party's  land.     Allgood  v.  Fahrney, 
146  N.  W.  42,  164  Iowa,  540. 


PLEADINGS,  PRACTICE,  ETC.  847 

(19)  In  a  suit  against  a  bank,  which  acted  as  a  broker,  for 
commission  for  sale  of  a  farm  made  by  plaintiff,  evidence  held 
to  show  that  the  bank  which  received  the  commission  was  liable 
for  the  land  so  listed  with  another.    Benzler  v.  First  Nat.  Bank, 
154  N.  W.  471,  —  Iowa  Sup.  — . 

(20)  Evidence,  in  an  action  to  recover  broker's  commission  on 
a  sale  of  real  estate;  held,  not  to  show  an  express  promise  to  pay 
the  agent  the  cash  received  over  a  stipulated  sum.     Jordan  v. 
Hill,  154  N.  W.  579,  172  Iowa,  414. 

(21)  In  an  action  on  an  agreement  to  divide  commissions,  evi- 
dence held  sufficient  to  show  that  plaintiff  did  not,  subsequent  to 
the  agreement,  agree  to  accept  a  sum  in  lieu  of  the  profits,  but 
that  defendant  financed  the  deal  adversely  to  plaintiff.     Jones  v. 
Lorack,  156  N.  W.  373,  —  Iowa  Sup.  — . 

(22)  Evidence,  in  an  action  for  commission  on  a  sale  of  realty; 
Jield,  to  show  that  tlie  oral  contract  superseding  the  written  one 
between  the  parties,  did  not  bind  plaintiff  to  sell  the  property  at 
$3,500,  to  be  entitled  to  a  commission.     Ranee  v.  Robinson  Inv. 
Co.,  154  P.  224,  97  Kan.  11. 

(23)  In  broker's  action  for  commission,  evidence  held  to  show 
that  negotiations  with  prospective  purchaser  procured  by  broker 
were  broken  off  for  want  of  an  acceptable  offer,  and  that  subse- 
quently selling  property,  defendant  did  not  know  that  such  pros- 
pective purchaser  was  interested  in  the  purchase.     Treacy  v.  Oil- 
man, 171  S.  W.  153,  161  Ky.  513. 

(24)  Evidence  held  insufficient  to  show  that  plaintiff's  author- 
ity to  act  as  defendant's  broker  in  the  transaction  relied  on  had 
expired  before  the  sale  was  made.     Reed  v.  LibTyy,  84  A.  1001, 
109  Me.  568. 

(25)  In  an  action  against  a  lessor  for  a  commission  for  nego- 
tiating a  lease,  evidence  held  to  show  that  the  proposition  to  de- 
fendant came  from  plaintiff  as  the  representative  of  the  lessee. 
Gordon  v.  First  Universalist  Society  of  Marlborougli,  104  N.  E. 
448,  217  Mass.  30. 

(26)  Evidence  held  insufficient  to  show  that  the  vendor  left 
money  with  defendant  wherewith  to  pay  plaintiff.     Edwards  v. 
TJioman,  153  N.  W.  806,  187  Mich.  361. 

(27)  Evidence  held  sufficient  to  show  a  general  contract  of 
agency  for  the  sale  of  land,  so  as  to  entitle  plaintiff  broker  to  his 


848  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

commission,  whether  the  land  was  sold  at  the  price  originally  de- 
manded or  not.  Lerner  v.  Harvey,  166  N.  W.  427,  189  Mich. 
249. 

(28)  The  owner  gave  a  proposed  purchaser  an  option  to  pur- 
chase the  land,  if  the  holder  of  a  prior  existing  option  failed  to 
purchase.    The  sale  was  made  to  a  party  not  named  in  the  first 
option,  and  who  claimed  the  right  to  purchase  thereunder.   Held, 
in  an  action  to  recover  commission  for  procuring  a  person  ready 
to  buy  under  the  second  option,  that  a  finding  that  the  party  to 
whom  the  sale  was  in  fact  made  was  not  entitled  to  purchase 
under  the  first  option  was  not  sustained  by  the  evidence.     Frys 
v.  Wdkefield,  120  N.  W.  35,  107  Minn.  291. 

(29)  Evidence,  in  an  action  on  notes,  where  a  defendant  real 
estate  broker  interposed  a  counterclaim  for  a  commission;  held, 
to  sustain  a  finding  that  defendant,  in  procuring  purchasers  for 
land,   was  working  for  plaintiff  individually,   and   not   for  the 
corporation  which  he  represented.    Kenniston  v.  Haw,  144  N.  W. 
452,  124  Minn.  140. 

(30)  Evidence,  in  a  broker's  action  for  commission;  held,  to 
"sustain  finding  that  the  owner  did  not  himself  sell  the  property. 
Wright  v.  Waite,  148  N.  W.  50,  126  Minn.  115. 

(31)  Evidence,  in  an  action  for  commission  of  $2  per  acre  on 
a  sale  of  land;  held,  to  sustain  a  finding  for  plaintiff  as  to  the 
terms  of  the  employment  contract.     Glaum  v.  Slcang,  150  N.  W. 
760,  129  Minn.  377. 

(32)  In  an  action  against  directors  of  a  trust  company  for 
agreed  compensation   for  procuring  land,   evidence   held  not   to 
show  any  contractual  relation  of  Board  of  Directors  with  plain- 
tiff or  their  authority  to  a  co-director  to  represent  them.     Bart- 
lett  v.  Oarrett,  175  S.  W.  79,  188  Mo.  App.  144. 

(33)  In  an  action  for  commission  for  procuring  a  tenant  able 
to  pay  part  of  expenses  of  erecting  a  building  on  defendant's  lots, 
evidence  held  to  show  that  an  agreement  between  defendant  and 
the  prospective  tenant,  of  a  certain  date,  had  been  abandoned  by 
mutual  consent,  and  no  new  agreement  made.     Herron  v.  Cam- 
eron, 128  N.  Y.  Sup.  871,  144  App.  Div.  43. 

(34)  Part  of  testimony  of  plaintiff,  in  an  action  by  a  broker 
against  M.  and  B.,  husband  and  wife,  for  commissions  for  intro- 
ducing a  customer,  "I  had  a  conversation  with  M.  and  B.  as  to 


PLEADINGS,  PRACTICE,  ETC.  849 

who  owned  the  property.  He  told  me  the  two  were  the  owners, 
but  she  is  the  one  of  record.  She  was  there.  She  said,  'There  is 
no  difference,  me  or  my  husband ;  he  does  the  work  for  me.' "  It 
cannot  be  said  plaintiff  offered  no  evidence  either  of  ownership 
by  M.  or  of  authorization  by  him,  on  his  own  account,  to  sell  the 
property.  Gordon  v.  Eosenlhal,  130  K  Y.  Sup.  226. 

(35)  In  an  action  by  a  broker  to  recover  compensation  for 
procuring  a  person  willing  to  lease  defendant's  building,  evidence 
held  sufficient  to  raise  implied  promise  on  the  part  of  defendant 
to  pay  for  the  broker's  services.    'Einhorn  v.  P.  Derby  &  Co.,  132 
N.  Y.  Sup.  327. 

(36)  Evidence  held  to  show  entire  amount  was  agreed  to  be 
paid  to  plaintiff  brokers  as  a  commission  for  selling  realty.    Levy 
v.  Sonneborn,  138  N".  Y.  Sup.  285,  78  Misc.  Rep.  50. 

(37)  Evidence,  in  a  broker's  action  to  recover  commission  for 
a  sale  or  exchange  of  defendant's  property;  held,  insufficient  to 
sustain  a  finding  that  the  services  were  rendered   gratuitously. 
Silberkraus  v.  "Winnie,  142  1ST.  Y.  Sup.  887,  158  App.  Div.  50. 

(38)  In  an  action  by  a  broker  to  recover  commissions,  evidence 
held  insufficient  to  show  that  defendant,  the  seller,  was  guilty  of 
any  act  which  prevented  the  consummation  of  the  transaction. 
Ruth  v.  Neiheiser,  152  K  Y.  Sup.  998. 

(39)  Evidence  held  insufficient  to •  show  that  plaintiff  sold  or 
procured  purchasers  for  the  property  within  the  time  and  on  the 
terms  specified  in  his  agency  contract.    Chambers  v.  Simmons,  85 
S.  E.  182,  76  W.  Va.  174.  " 

(40)  Evidence,  in  an  action  to  recover  a  broker's  commission 
in  the  amount  fixed  by  written  contract,  containing  terms  as  to 
lease,  payment,  building,  and  other  terms ;  held,  to  sustain  finding 
that  the  arrangement  as  finally  completed  and  carried  out  between 
purchaser  and  the  defendant  was  considered  by  them  as  fulfill- 
ment of  the  contract.    Jno.  E.  De  Wolf  Co.  v.  Harvey,  154  1ST.  W. 
988,  161  Wis.  535. 

(41)  Evidence  held  to  sustain  a  finding  that  principal  revoked 
his  broker's  authority  in  bad  faith,  so  as  to  be  liable  for  commis- 
sion.   Howard  v.  Street,  93  A.  923,  125  Md.  289. 

(42)  In  an  action  by  broker  for  commissions  for  making  a  sale 
of  real  estate  of  the  wife,  under  an  employment  by  her  husband, 
evidence  held  to  sustain  a  finding  of  the  revocation  in  bad  faith 


850  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

of  the  broker's  authority,  authorizing  a  recovery.     O'Connell  v. 
Casey,  92  N.  E.  804,  206  Mass.  520. 

(43)  Evidence,  in  an  action  for  broker's  commissions  for  se- 
curing a  loan;  held,  to  show  that  defendant  withdrew  its  propo- 
sition before  the  person  secured  by  plaintiff  to  furnish  the  money 
had  accepted  it.     Von  Bayer  v.  Ninigret  Mills  Co.,  134  N.  Y. 
Sup.  116,  149  App.  Div.  578. 

(44)  In  an  action  by  a  broker  for  compensation,  evidence  held 
to  sustain  finding  for  plaintiff,  on  a  claim  by  defendant  that  he 
had  withdrawn  the  land  from  sale.     Hall  v.  Olson,  114  P.  638, 
58  Or.  464. 

(45)  In  an  action  for  broker's  commission,  evidence  held  to 
justify  a  finding  that  the  first  contract  negotiated  between  defend- 
ant and  the  purchaser  was  abandoned,  and  reopened  negotiations 
through  another  channel,  and  that  plaintiff  was  employed  for  that 
purpose.     Meldrum  v.  SouiJiwick-Sellars  Land  Co.,  147  N".  W. 
1086,  157  Wis.  367. 

(46)  Evidence,  in  an  action  for  commission  on  an  exchange 
of  property;  held,  to  show  that  the  transaction  had  proceeded  no 
further  than  preliminary  negotiations.    Osburn  v.  Addington,  138 
P.  603,  91  Kan.  586. 

(47)  In   a  broker's  action  for  commission,   evidence  held  to 
show  a  completed  agreement  of  sale  and  purchase  between  the 
seller  and  buyer  produced  by  plaintiff,  though  no  written  con- 
tract was  made  at  the  time.    Goncanun  v.  Point  Min.  &  Mill  Co., 
135  S.  W.  988,  156  Mo.  App.  79. 

(48)  In  an  action  for  division  of  broker's  commission,  evidence 
held  to  support  a  finding  that  plaintiff  procured  purchasers  for 
the  land  in  question,  or  rendered  such  services  in  connection  with 
the  sales  as  would  entitle  him  to  compensation  under  the  con- 
tracts of  employment.    Hageman  v.  O'Brien,  141  P.  33,  24  Cal. 
App.  270. 

(49)  In  an  action  by  a  real  estate  broker  for  commission,  evi- 
dence held  insufficient  to  show  that  the  broker  "actually  brought 
about  the  consummation  of  a  sale."    Baldino  v.  Henneberry,  191 
111.  App.  368. 

(50)  In  an  action  by  a  real  estate  broker  to  recover  commis- 
sion for  a  sale  of  land,  another  broker  having  first  made  efforts 


PLEADINGS,  PRACTICE,  ETC.  851 

to  sell  the  land  to  the  same  purchaser,  plaintiff  need  only  show 
that  he  was  the  efficient  cause  of  the  sale,  and  need  not  deduce 
direct  evidence  of  an  abandonment  by  the  other  broker.  Fenton 
v.  Miller,  134  N.  W.  95,  153  Iowa,  747. 

(51)  Evidence,  in  a  broker's  action  for  commission;  held,  in- 
sufficient to  show  that  a  sale  was  made  by  plaintiff,  or  by  any  one 
acting  in  his  stead.    Starbird  v.  <7.  H.  McShane  Timber  Co.,  142 
N.  W.  683,  94  Neb.  79. 

(52)  In  an  action  by  a  broker  to  recover  commission  for  a  sale 
of  real  estate,  the  introduction  of  the  property  to  the  notice  of 
the  purchaser,  and  the  subsequent  purchase  of  it  by  the  latter, 
is  not  sufficient  evidence  that  the  service  rendered  by  the  broker 
was  the  important  and  efficient  cause  of  the  sale,  where  there  is 
evidence  that  plaintiff  had  entirely  discontinued  his  efforts  to  sell 
the  property  for  a  considerable  period  of  time  after  he  had  intro- 
duced defendant  to  the  purchaser,  and  the  testimony,  both  of  de- 
fendant and  the  purchaser,  is  that  the  purchaser  bought  the  prop- 
erty directly  from  defendant,  without  the  intervening  agency  of 
plaintiff.    Barrow  v.  Newton,  48  Pa.  Super.  Ct.  382. 

(53)  Evidence,  in  a  broker's  action  for  commission  for  pro- 
curing purchaser  for  land;  field,  insufficient  to  show  that  certain 
written  directions  embodying  the  terms  of  sale,  which  were  left 
with  the  bank  with  which  the  deed  and  the  purchaser's  mortgage 
were  deposited,   did  not  relate  to  the  production  of  purchasers 
ready  and  able  to  purchase.    Peterson  v.  Kenady,  120  P.  402,  60 
Or.  554. 

(54)  In  an  action  for  commission  on  the  sale  of  a  hotel,  evi- 
dence held  sufficient  to  support  a  finding  that  the  services  were 
performed  for  defendant,  although  it  was  claimed  that  the  lease 
of  the  hotel  and  the  furniture  were  owned  by  the  son,  defendant's 
manager.    Smith  v.  7.  Geverty  &  Sons,  135  P.  190,  67  Or.  25. 

(55)  Evidence,  in  an  action  to  recover  a  commission  for  pro- 
curing a  purchaser  for  realty,  pursuant  to  written  authority;  held 
to  show,  at  most,  an  attempted  oral  ratification  of  the  services 
performed  by  the  broker  in  securing  a  purchaser,  and  an  oral 
promise  by  the  son  to  pay  for  the  benefit  received  as  a  commission 
and  percentage  of  the  bid  made  for  the  property,  if  the  offer  were 
accepted.     Slofboom  v.  Simpson  Lumber  Co.,  135  P.  889,  67  Or. 
516,  Ann.  Gas.  1915  C,  339,  re.  den.,  136  P.  641,  67  Or.  516. 


852  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

(56)  In   an   action   for   broker's   commission,   proof  that   the 
broker,  who  admittedly  had  no  exclusive  agency,  offered  the  prop- 
erty to  the  city,  and  that  the  city  thereafter  purchased  it,  is  not 
sufficient  to  entitle  him  to  a  commission.    Taylor  v.  Peterson,  147 
P.  520,  76  Or.  77. 

(57)  Evidence,  in  an  action  by  plaintiffs  to  recover  on  defend- 
ants written  agreement  to  pay  $220  for  plaintiff's  services  in  pro- 
curing a  loan  upon  defendant's  farm ;  held,  not  to  warrant  recov- 
ery.   Miller  v.  Weaver,  153  P.  465,  78  Or.  594. 

(58)  Evidence,  in  an  action  for  broker's  commission;  held,  in- 
sufficient to  show  that  a  purchaser  was  procured  by  the  broker. 
Powell  v.  King,  135  N.  W.  719,  29  S.  D.  94. 

(59)  Where  a  commission  was  claimed,  both  by  a  real  estate 
broker  and  by  the  purchaser  of  the  land,  evidence  held  to  sustain 
a  finding  awarding  the  commission  to  the  broker.     Withers  v. 
Armstrong,  142  S.  W.  932,  —  Tex.  Civ.  App.  — . 

(60)  Evidence  held  to  support  a  finding  that  the  owner  fraudu- 
lently withdrew  the  property  from  the  broker  to  defeat  the  right 
to  commission  earned.     Anderson  v.  Crow,  151  S.  W.  1080,  — 
Tex.  Civ.  App.  — . 

(61)  Evidence,  in  an  action  for  commission  for  assisting  in  an 
exchange  of  realty,  in  which  there  was  an  issue  as  to  commissions 
from  both  parties ;  held,  to  sustain  a  finding  that  defendants  knew 
that  plaintiff  had  undertaken  to  find  a  purchaser  for  the  other 
party  to  the  exchange.     T.  A.  Hill  &  Son  v.  Patton  &  Schwartz, 
160  S.  W.  1155,  —  Tex.  Civ.  App.  — . 

(62)  A  broker's  evidence  that  he  made  the  contract;  held,  to 
establish  a  prima  facie  case,  without  proving  by  each  of  the  pur- 
chasers.   E.  R.  &  D.  C.  Kolp  v.  Brazer,  161  S.  W.  899,  —  Tex. 
Civ.  App.  — . 

(63)  In  a  broker's  action  for  commission,   evidence  held  to 
warrant  finding  that  the  list  price  was  to  be  net  to  defendant,  ex- 
clusive of  commission.     Ridenhower  v.  Collins,  171  S.  W.  1078, 
—  Tex.  Civ.  App.  — . 

(64)  In  an  action  to  recover  an  agreed  commission  for  pro- 
curing a  loan  for  defendant,  brought  on  the  theory  that  plaintiff 
found  a  person  willing  to  make  the  loan,  but  refused  to  do  so,  on 
his  discovery  that  there  was  not  the  amount  of  timber  represented 
by  defendants  on  the  land  to  be  given  as  security,  evidence  held 


PLEADINGS,  PRACTICE,  ETC.  853 

to  sustain  findings  that  the  representations  by  defendants  as  to 
the  amount  of  timber  on  the  land  were  not  intended  as  other  than 
an  expression  of  opinion  as  to  the  quantity  of  timber,  and  that 
the  plaintiff  did  not  rely  thereon.  McDonald  v.  Dietderich,  118 
P.  341,  65  Wash.  487. 

(65)  Evidence,  in  an  action  for  a  commission  due  to  plain- 
tiffs assignor  for  procuring  an  exchange  of  property;  held,  to 
show  that  the  exchange  was  effected  by  assignor's  efforts,  and  that 
both  property  owners  utilized  his  efforts  in  the  negotiations.     In- 
man  v.  Brown,  147  S.  W.  652,  —  Tex.  Civ.  App.  — . 

(66)  Evidence  held  to  support  a  finding  that  the  broker  em- 
ployed to  procure  a  purchaser  of  real  estate  was  the  efficient  cause 
of  the  sale  actually  made  by  another  broker,  authorizing  a  recov- 
ery of  commission.    Bellis  v.  Hann  &  Kendall,  157  S.  W.  427,  — 
Tex.  Civ.  App.  — . 

(67)  In  an  action  by  a  broker  for  commission,  evidence  exam- 
ined, and  held  to  warrant  a  finding  that  plaintiff  produced  a  pur- 
chaser ready,  willing  and  able  to  buy,  but  that  the  property  sold 
was  taken  in  the  .name  of  another  to  defeat  payment  of  commis- 
sions.   Fist  v.  Currie,  112  P.  689,  49  Colo.  284. 

(68)  Evidence,  in  an  action  for  commission   in  procuring  a 
purchaser  for  a  farm;  held,  insufficient  to  justify  the  jury  in 
finding  the  proposed  purchaser  could  raise  sufficient  money.   White 
v.  Ames,  179  111.  App.  220. 

(69)  Evidence,  in  an  action  by  a  broker  for  commission;  held, 
sufficient  to  sustain  finding  that  defendant,  with  full  knowledge 
of  the  contents  of  the  written  contract  of  sale  made  by  the  broker, 
ratified   it.     Wilson   v.   Burch,   162    S.   W.    1018,   —  Tex.    Civ. 
App.  — . 

(70)  Evidence,   in   an   action   for  procuring  a   purchaser   for 
realty;  held,  to  show  that  plaintiff's  sub-agent  was  guilty  of  bad 
faith  toward  the  owner,  so  as  to  defeat  a  recovery  of  commissions 
by  plaintiff  for  making  the  sale.    Alford  v.  Creagh,  62  S.  254,  7 
Ala.  App.  358. 

(71)  Evidence  held  to  warrant  a  finding  that  defendant  was 
not  induced  by  fraudulent  representations  to  sign  a  contract  em- 
ploying plaintiff  to  sell  certain  real  estate  for  him,  or  a  deed  by 
which  the  property  was  conveyed  to  a  customer  which  complain- 
ant procured.    Ingram  v.  Coleman,  160  S.  W.  886,  110  Ark.  632. 


854  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

(72)  In  an  action  by  a  broker  who  effected  a  sale  of  a  placer 
mine,  evidence  held  sufficient  to  support  a  finding  that  he  acted 
as  a  mere  middleman,  and  that  he  was  not  guilty  of  any  bad 
faith  in  accepting  compensation  from  the  purchasers,  and  hence 
might  recover  from  the  seller  the  agreed  commission.     King  v. 
Reed,  141  P.  41,  24  Cal.  App.  229. 

(73)  Evidence,  in  an  action  for  commission  for  exchange  of 
real  estate,  examined  and  held  not  to  show  misrepresentation  by 
plaintiff  as  to  the  dimensions  of  property  for  which  exchange  was 
made.    Madden  v.  Davis,  192  111.  App.  575. 

(74)  Evidence  examined,  and  held  to  show  that  defendant  had 
notice  that  plaintiff  was  representing  both  parties.    Id. 

(75)  Evidence  held  to  sustain  a  finding  that  the  broker  em- 
ployed to  procure  a  purchaser  fraudulently  procured  a  conveyance 
to  himself,  and  then  conveyed  the  property  at  a  higher  price  to  a 
customer.    Brocken  v.  Jaclcson,  140  N.  W.  892,  159  Iowa,  424. 

(76)  In  an  action  for  a  commission  in  negotiating  an  exchange, 
defended  on  the  ground  of  double  employment,  evidence  held  suf- 
ficient to  warrant  a  finding  that  defendant  knew  before  the  ex- 
change was  agreed  upon  that  the  other  party  had  agreed  to  pay 
plaintiffs  a  commission.    Redmond  Bros.  v.  Herike,  114  N.  W.  885, 
137  Iowa,  228. 

(77)  In  an  action  by  a  real  estate  broker  to  recover  commis- 
sion, evidence  held  to  sustain  a  finding  that  his  acts  were  free 
from  fraud.    Jones  v.  Arnold,  132  P.  1000,  89  Kan.  755. 

(78)  In  an  action  for  commission  for  procuring  a  purchaser 
of  real  estate,  evidence  held  to  support  a  finding  that  plaintiff 
procured  a  purchaser  while  acting  for  himself,   and  not  for  a 
third  person.    Crawford-Chesterfield  Co.  v.  Snoolc,  142  S.  W.  385, 
146  Ky.  248. 

(79)  Evidence,  in  an  action  for  broker's  commission,  held  to 
show  that  he  merely  brought  the  parties  together,  and  did  not 
act  for  either  in  the  negotiations.    American  Security  Co.  v.  Pen- 
ney, 152  N.  W.  771,  129  Minn.  369. 

(80)  Evidence  held  to  warrant  a  finding  that  the  broker  em- 
ployed to  sell  certain  property,  and  on  whose  representation  a 
valid  sale  was  made,  became  jointly  interested  with  the  purchaser 
in  the  purchase  during  the  transaction,  without  knowledge  of  such 


PLEADINGS.  PRACTICE;' ETC.  855 

interest  on  the  part  of  his  employers.     Waterbury  v.  Barry,  130 
N.  Y.  Sup.  517,  145  App.  Div.  773. 

(81)  In  an  action  by  a  broker  for  commission  for  procuring 
one  ready,  able  and  willing  to  contract  for  an  exchange  of  real 
estate,  evidence  held  to  support  a  finding  that  the  contract  of  ex- 
change   was    procured    without    any    misrepresentation    of    fact. 
BucTcsdorf  v.  Bender,  141  N".  Y.  Sup.  515,  80  Misc.  Rep.  498. 

(82)  Evidence  held  not  to  show  the  good  faith  necessary  to 
entitle  plaintiff,  who  was  employed  by  the  lessee  to  procure  a 
lease,  to  recover  a  commission  from  the  lessor.     Gulick  v.  Investor 
Estates  Corp.,  151  N.  Y.  Supp.  513. 

(83)  In  an  action  for  broker's  commission  for  sale  of  land, 
evidence  held  to  show  that  plaintiff  did  not  act  as  the  purchaser's 
agent  before  or  when  the  sale  was  made.     Toland  v.  Williams  & 
Wiley,  129  S.  W.  392,  —  Tex.  Civ.  App.  — . 

(84)  Evidence  held  to  show  that  the  broker  employed  for  the 
owner,  to  procure  a  purchaser,  did  not  receive  compensation  from 
the  purchaser  obtained.     Moore  v.  J.  N.  Johnson  Land  Co.,  143 
S.  W.  941,  —  Tex.  Civ.  App.  — . 

(85)  In  a  suit  to  recover  real   estate  commissions,   evidence 
held  to  warrant  a  finding  that  defendant  contracted  to  pay  the 
commission  claimed.    Michael  v.  White,  181  S.  W.  130,  121  Ark. 
315. 

(85a.)  In  an  action  for  compensation  based  on  a  percentage  of 
the  value  of  the  property  received  by  defendant  in  exchange,  evi- 
dence held  not  to  show  as  an  undisputed  fact  that  defendant  as- 
sumed a  mortgage  on  the  property  received,  reducing  its  value 
by  the  amount  thereof.  Id. 

(86)  In  a  broker's  action  against  another  broker  for  a  share 
of  the  commission  on  a  sale,  jury's  finding  as  to  the  value  of 
plaintiff's  services  were  reduced  by  the  trial  court;  held,  not  un- 
supported by  the  evidence.     Johnston  v.  Porter,  131  P.  69,  21 
Cal.  App.  97. 

(87)  Evidence  held  to  sustain  a  finding  that  defendants  agreed 
that  plaintiff  should  receive  for  his  services  in  procuring  a  pur- 
chaser the  amount  received  for  defendant's  farm  above  $90  per 
acre.    Tanner  v.  J.  Joslin,  155  N.  W.  762,  132  Minn.  1. 

(88)  In  an  action  by  a  broker  for  commissions  for  procuring 
an  exchange  of  real  estate,  evidence  held  to  support  a  finding  that 


856  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

there  was  no  agreement  as  to  which  contract  his  commission 
should  be  based  on.  Leake  v.  Scaief,  140  S.  W.  814,  —  Tex.  Civ. 
App.  — . 

(89)  In  an  action  to  recover  compensation  for  procuring  a 
tenant  and  securing  the  execution  of  a  bond  to  secure  the  rent, 
which  amounted  to  $96,000  for  the  term  of  the  lease,  judgment 
for  $960,  held,  under  the  evidence,  not  excessive.    Rutz  v.  Obear, 
115  P.  67,  15  Cal.  App.  435. 

(90)  In  an  action  for  a  broker's  commission,   an   award  of 
$862  for  procuring  an  exchange  of  property  listed  by  the  owner 
at  $35,000  was  not  unreasonable.    Baker  v.  Barker,  137  N.  W.  7, 
118  Minn.  419. 

(91)  In  an  action  involving  whether  consideration  by  agree- 
ment by  plaintiff  to  pay  defendant  a  commission  on  sale  of  real 
estate  and  property  of  a  corporation  was  a  loan  of  money  and  an 
extension  of  payment  for  services  performed  by  the  defendant, 
a  finding  that  the  corporation  had  appointed  defendant  its  agent ; 
held,  outside  the  issues,  and  not  to  support  judgment  authorizing 
defendant  to  hold  collateral  as  security  for  commissions  on  a  fu- 
ture sale.    Blaisdell  v.  fiteinfeld,  137  P.  555,  15  Ariz.  155. 

(92)  A  finding  that  plaintiff,   a  real  estate  broker  claiming 
commission,  was  employed  under  a  memorandum  signed  by  de- 
fendant,  sufficiently  negatives   the   defense   that   the   action   was 
barred  by  Civ.  Code,  sec.  1624,  and  Code  Civ.  proced.,  Sec.  1973, 
requiring  such  contract  of  employment  to  be  in  writing.     Curran 
v.  HuWard,  114  P.  81,  14  Cal.  App.  733,  re.  den.,  114  P.  83,  14 
Cal.  App.  733. 

(93)  A  finding  that,  through  the  efforts  of  the  broker  employed 
to  procure  a  purchaser,  the  negotiations  having  reached  a  point 
where  his  authority,  if  revoked,  was  revoked  in  bad  faith,  is  a 
finding  that  he  found  the  customer  for  the  owner,  if  he  finally 
agrees  on  a  price  with  the  owner.     O'Connell  v.  Casey,  92  N.  E. 
804,  206  Mass.  520. 

(94)  In   an   action   for   a  broker's   commission,    finding   held 
equivalent  to  a  finding  that  the  broker  had  procured  a  purchaser 
ready,  willing  and  able  to  buy.    Babcock  v.  Glover,  174  S.  W.  710, 
—  Tex.  Civ.  App.  — . 

(95)  In  a  suit  against  a  broker  by  a  purchaser  of  property  to 
recover  a  portion  of  the  consideration  for  an  exchange  conveyed 


PLEADINGS,  PRACTICE,  ETC.  857 

by  complainant  to  the  broker  or  to  another  designated  by  him  and 
retained  as  part  of  the  commission,  evidence  held  insufficient  to 
establish  either  the  relation  of  principal  and  agent  between  plain- 
tiff and  the  broker,  or  the  grantee  in  the  property,  or  such  fraud 
and  deceit  as  would  entitle  plaintiff  to  equitable  relief.  Lotson  v. 
Buck,  130  N.  W.  970,  89  Neb.  28. 

(96)  In  an  action  for  deceit  in  inducing  an  exchange  of  land, 
evidence  held  insufficient  to  show  authority  of  the  real  estate  agent 
to  make  representations  for  defendant.     Meowing  v.  Becker,  152 
N.  Y.  Sup.  385,  166  App.  Div.  793. 

(97)  Evidence  held  to  support  a  finding  that  there  was  no 
confirmation  by  the  principal  of  the  sale  of  land  by  his  ostensible 
agent,  who  was  acting  in  reality  as  the  agent  of  the  purchaser. 
Evans  v.  Brown,  125  P.  469,  33  Okl.  323. 

(98)  In  an  action  to  recover  a  broker's  commission  for  pro- 
curing an  exchange  of  a  stock  of  goods  for  a  tract  of  land,  evi- 
dence held  insufficient  to  establish  agency.    Elliott  v.  Moyes,  196 
111.  App.  605. 

(99)  Broker's  testimony  that  defendant  employed  him  to  sell 
or  exchange  lands  supported  the  count  of  the  petition  alleging 
employment.     Fisher  &  Bell  v.  Carter,  160  N.  W.  15,  —  Iowa 
Sup.  — . 

(100)  Evidence  held  not  to  show  any  contractual  relation  be- 
tween broker  and  defendant.     Dickinson  v.  Hanley,  160  N.  W. 
389,  —  Mich.  Sup.  — . 

(101)  In  an  action  for  compensation  for  procuring  a  purchaser 
of  a  lease,  evidence  held  to  show  employment  of  plaintiff.     Mor- 
row v.  Tourieloite,  160  N.  W.  665. 

(102)  Where  real  estate  broker,  unable  to  agree  with  owner  as 
to  commission,  made  contract  with  bank  to  sell  land,  which  re- 
served a  stated  commission  for  itself;  subsequent  agreement  by 
broker  to  accept  a  less  amount;  held,  not  based  on  sufficient  con- 
sideration.   Hay  v.  McDonald,  165  P.  1030,  21  Cal.  App.  204. 

(103)  In  a  real  estate  broker's  action  for  commission,  evidence 
held  to  sustain  finding  that  plaintiff  was  authorized  to  act  for 
defendant  in  procuring  a  purchaser  for  real  estate.     Johnson  v. 
Buckley,  163  N.  W.  342,  —  Iowa  Sup.  — . 

(103a.)  In  an  action  by  corporation  as  a  real  estate  broker  to 
recover  commission  for  alleged  services  in  procuring  a  lease,  evi- 


858  AMERICAN  LAW  BEAL  ESTATE  AGENCY. 

dence  held  insufficient  to  disclose  any  employment  by  defendant 
lessor,  broker  representing  lessee  in  only  negotiations  in  which 
defendant  participated.  Ge.  P.  Read  &  Co.  v.  Sturges,  163  1ST.  Y. 
Sup.  559. 

(104)  The  superior  court's  finding  that  plaintiff  broker  was 
the  procuring  cause  of  selling  defendant's  plant  under  receiver- 
ship, must  be  supported  by  evidence  that  broker  had  brought  to 
receiver's  attention  the  ultimate  purchaser,  and  that  sale  followed 
in  consequence.    Seward  v.  M.  Seward  &  Son  Co.,  99  A.  887,  91 
Conn.  190. 

(105)  Where  receiver,  believing  he  had  no  authority  to  sell 
defendant's  plant  for  credit,  agreed  with  purchaser  procured  by 
plaintiff  broker  to  have  stockholders  sell  their  stock,  and  the  sale 
was  confirmed,  the  court's  finding  that  this  was  in  effect  a  sale 
was  justified.    Id. 

(106)  Where  broker  brings  principals  together,  and  they  enter 
into  contract  of  exchange;  held,  that  all  questions  of  readiness  or 
ability  of  performance  are  presumed  to  have  been  agreed  upon  and 
passed  by  the  principals  as  satisfactory.    Genatt  v.  Rubinson,  165 
N.  Y.  Sup.  464. 

.  (107)  In  broker's  action  for  commissions,  evidence  held  to 
warrant  a  jury  finding  for  plaintiff.  Johnson  v.  Doubrowsky,  163 
N.  W.  589,  —  Iowa  Sup.  — . 

(108)  In  an  action  by  agent  to  recover  commission  for  sale  of 
tract  of  land,  evidence  held  to  show  the  making  of  special  agree- 
ment fixing  the  commission  at  a  gross  sum,  not  payable  until  the 
purchaser  pays  his  first  note.    Thompson  v.  Davidson,  162  N.  W. 
458,  —  Minn.  Sup.  — . 

(109)  Evidence  held  to  sustain  finding  that  plaintiff  had  con- 
tracted with  defendant  for  a  percentage  on  selling  price  for  secur- 
ing purchasers  for  defendant's  land,  and  that  thereafter  he  pro- 
cured purchasers  and  earned  the  compensation.     Alden  v.  Sacra- 
mento  Suburban  Fruit  Land   Co.,   163   K   W.    133,   —   Minn. 
Sup.  — . 

(110)  In  an  action  to  cancel  a  note  and  mortgage  given  a 
broker  as  compensation  for  securing  a  loan,  principal's  testimony 
held  not  to  sustain  a  finding  that  the  broker  assured  him  he  could 
secure  an  additional  loan  from  another  party.     Bledsoe  v.  Lom- 
bard, 194  S.  W.  518,  —  Mo.  App.  — . 


PLEADINGS,  PRACTICE,  ETC.  859 

(111)  In  an  action  by  brokers  for  commission  for  a  purchase 
of  land,  evidence  held  to  show  that  purchaser  made  an  express 
contract  to  pay  commission  to  the  broker.    West  v.  Kirby  Lumber 
Co.,  193  S.  W.  172,  —  Tex.  Civ.  App.  — . 

(112)  Where  broker  had  right  to  sell  for  $9,600,  but  he  there- 
after sells  for  $9,500  by  paying  the  difference;  held,  that  owner's 
claim  that  he  waived  commission  of  $500  was  improbable,  and  the 
broker's  contention  that  defendant  agreed  to  make  up  the  differ- 
ence on  other  sales  would  be  accepted.    Parker  v.  Seattle  Land  & 
Imp.  Co.,  165  P.  1086,  —  Wash.  Sup.  — . 

(113)  In  a  broker's  action  for  procuring  an  exchange  of  real 
estate,  statement  on  cross-examination  by  proposed  purchaser  that 
a  company,  of  which  he  was  president,  was  owner  of  lots  offered 
to  be  exchanged  for  defendant's  property,  without  a  showing  that 
the  company  was  formally  organized,  or  existing  as  a  corporation 
or  association,  did  not  justify  the  inference  that  the  proposed  pur- 
chaser was  entitled  to  convey  the  lots.     Schmidt  v.  Dunne,  163 
K  Y.  Sup.  515. 

(114)  In  an  action  on  note  given  brokers  in  payment  of  com- 
missions for  making  exchange  of  land,  -wherein  defendant  coun- 
terclaimed  for  damages  for  deceit,  evidence  held  to  justify  finding 
that  brokers  stated  land  received  by  defendant  was  worth  $150  an 
acre,  but  that  defendant  inspected  it,  with  full  opportunity  to 
investigate,  etc.    Michaelson  v.  SchulTce,  163  K  W.  228,  —  Iowa 
Sup.  — . 

(115)  Claim  of  owners  as  justification  for  refusal  to  recog- 
nize broker's  sales  as  to  broker's  deception  of  them  concerning  the 
amount  for  which  lots  sold  to  the  city;  held,  improbable.    Parker 
v.  Seattle  Land  &  Imp.  Co.,  165  P.  1086,  —  Wash.  Sup.  — . 

(116)  Broker  who  agreed  to  take  notes  for  excess  over  owner's 
price,  which  represented  his  commission,  can  not  recover  from  the 
owner,  who  refused  to  make  the  sale,  the  full  amount  of  the  ex- 
cess, without  proving  that  the  notes  would  have  been  worth  face 
value.    Weifbree  v.  Morris,  163  P.  1119,  —  Colo.  Sup.  — . 

(117)  In  an  action  for  an  agent's  compensation  for  selling 
land,  evidence  held  not  to  show  that  defendants  represented  abso- 
lutely quantity  of  land  they  owned,  so  as  to  entitle  plaintiff  to 
recover  compensation  based  on  the  contract  price,  without  deduc- 


860  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

tion  for  shortage  in  the  acreage.     Warne  v.  White,  164  N.  Y. 
Sup.  30. 

(118)  Owner  of  property  held  not  liable  for  commissions,  where 
he  verbally  put  a  certain  price  on  land,  and  at  such  time  the  bro- 
ker brought  customers  to  the  owner,  who  signed  an  option  agree- 
ment, which  was  cancelled,  and  where,  about  nine  months  later, 
the  owner  raised  the  price  of  said  land,  after  it  had  cost  the 
owner  a  considerable  sum  to  secure  cancellation  of  a  lease  on  the 
premises,  and  where  there  may  have  been  other  reasons  for  rais- 
ing the  price,  even  though  the  broker  procured  the  same  prospec- 
tive purchasers  as  previously,  who  were  willing  to  pay  the  sum 
first  asked.    Becker  v.  Hollesen,  198  111.  App.  180. 

(119)  Under  contract  between   landowner  and  broker  which 
did  not  require  broker,  who  was  given  limited  time  to  dispose  of 
property,   to   have   a  binding   contract    delivered   by   that   time, 
broker,  to  be  entitled  to  commission,  need  not  produce  a  purchaser 
in  person.    Leland  v.  Barber,  117  N.  E.  33,  228  Mass.  144. 

(120)  Where  the  brokers  were  entitled  to   commission   from 
owner  of  land,  as  for  a  sale,  they  having  procured  a  purchaser 
ready,  able  and  willing  to  meet  owner's  terms  for  sale,  was  pre- 
vented by  failure  of  perfect  title,  or  by  mere  will  of  owner,  de- 
spite the  language  of  contract  with  owner  that  he  would  pay  com- 
mission simply  when  "consummated."     Purcell  v.  Firth,  167  P. 
379,  —  Cal.  Sup.  — . 

(121)  Purchaser   of  beach   property,   who    stated   he    wanted 
ocean-front   property,    and   nothing   else,    seller's   broker   stating 
there  would  be  nothing  in  front  of  his  lot  but  a  board  walk; 
held,  not  entitled  to  relief  by  way  of  having  easement  declared  to 
be  in  him  over  beach  in  front  of  his  property  from  which  seller 
later  sold  other  lots.    Phillips  v.  West  Roclcaway  Land  Co.,  163 
K  Y.  Sup.  993 ;  177  App.  Div.  260. 

(122)  In  an  action  by  buyer  of  farm  to  recover  back  from 
seller  $1,000,  on  account  of  like  amount  paid  broker  who  nego- 
tiated the  sale,  the  buyer  having  thereafter  paid  seller  full  pur- 
chase price,  without  deduction,  seller  denying  that  broker  was  to 
receive  commission;  held,  to  sustain  finding  that  broker  was  to 
receive  a  commission  of  $1,000  from  seller.    Gosswiller  v.  Jansen, 
162  N.  W.  45,  —  Iowa  Sup.  — . 


PLEADINGS,  PEACTICE,  ETC.  861 

(123)  Broker's  reply  to  letter  from  member  of  syndicate,  stat- 
ing that  he  and  the  other  members  would  be  liable  for  their  share 
of  syndicate  transactions  and  not  jointly;  held,  an  acceptance  by 
the  plaintiff  of  the  notice  of  the  liabilities  of 'the  parties  to  the 
account,  and  an  assent  thereto,  and  not  a  mere  acknowledgment. 
Post  v.  Thomas,  168  N.  Y.  Sup.  226,  180  App.  Div.  627. 

(124)  Where  there   is  evidence   that  brokers  who  negotiated 
trade  of  two  lots  procured  loan  to  erect  building  on  one  of  them, 
that  lender,  in  accordance  with  his  custom,  paid  brokers  amount 
of  loan,  leaving  to  them  matter  of  ascertaining  if  title  was  clear, 
court's  finding  that  broker  was  agent  of  leader  is  proper.    Walker 
v.  Baumeister,  166  P.  1037,  —  Gal.  App.  — . 

(125)  Broker's  failure  to  bring  principal  and  prospective  pur- 
chaser together;  held  immaterial,  where  principal  prevents  con- 
summation of  contract.    Blake  v.  Perrin,  242  F.  54,  154  C.  C.  A. 
646. 

(126)  Where  landowner  offered  to  pay  a  broker  commission  if 
he  could  procure  a  purchaser  at  a  stated  price,  within  a  fixed 
time,  but  the  contract  did  not  require  broker  to  produce  a  binding 
contract,  broker  can  not  be  denied  compensation  because  he  did 
not,  within  the  time  fixed,  obtain  such  a  contract,  it  appearing 
that  he  could  readily  have  obtained  it  thereafter.    Leland  v.  Bar- 
ber, 117  N.  E.  33,  228  Mass.  144. 

(127)  In  an  action  to  recover  a  broker's  commission,  where 
the  purchaser  secured  for  it  by  plaintiff  declined  to  carry  out  the 
contract,  because  he  learned  that  a  building  on  the  land  en- 
croached on  adjoining  land,  evidence  held  to  sustain  a  finding  of 
the  court,   trying  the   case   without   a  jury,   that  plaintiff  was 
chargeable  with  knowledge  of  the  encroachment  before  he  procured 
such  purchaser.    Friends  v.  Mohin,  202  111.  App.  40. 

(128)  In  an  action  by  a  real  estate  broker  against  the  owner 
of  a  building  to  recover  a  commission  on  a  lease  of  the  building, 
evidence  held  insufficient  to  show  any  contract,  express  or  implied, 
between  plaintiff  and  defendant,  in  relation  to  any  service  to  be 
rendered  by  plaintiff  for  defendant  in  relation  to  the  leasing  of 
defendant's  property,  or  by  defendant  to  pay  plaintiff  for  any 
services  rendered.    Sadler  v.  Schnelbacher,  203  111.  App.  495. 

(129)  A  landowner  which  places  its  lands  in  the  hands  of  a 
single  agent  for  sale,  held,  not  liable  for  commission  to  a  third 


862  AMERICAN  LAW  BEAL  ESTATE  AGENCY. 

person  who  made  sales  of  some  of  the  lands.  Thrailkill  v.  Cros- 
lyton-Southplains  E.  Co.,  246  F.  687,  158  C.  C.  A.  643,  L.  R.  A. 
1918  C,  90. 

(130)  Broker's  statement  to  disinterested  third  party,  that  he 
did  not  care  whether  a  trade  was  made  or  not;  held,  not  an  aban- 
donment of  the  agreement.    Zeigler  v.  Butler,  171  P.  64,  —  Colo. 
Sup.  — . 

(131)  Refusal  of  broker  employed  to  negotiate  exchange  to  ac- 
company his  principal,  for  the  purpose  of  inspecting  a  stock  of 
goods;  held,  not  an  abandonment  of  the  employment.    Id. 

(132)  Although  person  with  whom  plaintiff  broker  had  been 
negotiating  for  exchange  of  defendant's  land  had  expressed  wil- 
lingness to  exchange  upon  certain  terms;  held,  reply  telegram  of 
such  person  that  he  would  return  at  a  certain  time  did  not  con- 
stitute a  binding  contract.    Raleigh  Real  Estate  Co.  v.  Noser,  95 
S.  E.  498,  175  N.  C.  255. 

(133)  Demand  by  plaintiff  broker  that  the  defendant  listed 
lot,  if  sold,  that  defendant  correct  mistakes  in  abstract  as  to 
mortgage  foreclosure,  and  make  good  title  as  to  certain  convey- 
ances; held,  not  to  exact  of  defendant  impossibilities  not  required 
by  contract.    Butte  Land  &  Inv.  Co.  v.  'Williams,  173  P.  550,  — 
Mont.  Sup.  — . 

(134)  Where  agent  procures  a  contract  for  sale  of  principal's 
property  and  payment  of  earnest  money,  and  principal  extends 
time  for  completion  of  sale,  and  manifests  intention  to  pay  com- 
mission, he  is  liable  therefor,  though  agreement  is  afterwards  vio- 
lated and  earnest  money  forfeited.    Maloney  v.  Aschafferiburg,  78 
S.  761,  —  La.  Sup.  — . 

(135)  Owner  of  land  who  employed  broker  to  sell  on  certain 
terms  as  to  commission  and  proved  contract  made;  held,  liable 
for  5%  commission,  under  original  agreement,  though  broker  at 
first  concealed  fact  that  price  received  was  in  excess  of  authorized 
price.    Clay  v.  Cummins,  77  S.  328,  —  Ala.  Sup.  — . 

(136)  Where  principal  takes  an  automobile  as  part  considera- 
tion in  sale  of  land  under  an  agreement  with  broker  that  commis- 
sion was  to  be  only  $50  instead  of  $300,  the  commission  agreed 
upon  in  event  of  a  sale  of  the  property  under  terms  listed,  broker 
will  be  held  to  such  agreement,   and  can  not  recover  original 
commission.  Britain  v.  Rice,  204  S.  W.  254,  —  Tex.  Civ.  App.  — . 


PLEADINGS,  PEACTICE,  ETC.  863 

(137)  Where  broker  consented  to  reduction  in  amount  of  com- 
mission to  $50  "cash,"  upon  principal's  agreement  to  sell  land  on 
different  terms  than  those  listed,  the  word  "cash"  did  not  indi- 
cate intention  that  money  was  to  be  paid  in  money,  and  not 
other  things  of  value.    Id. 

(138)  Under  contract  between  vendors  of  farm  and  their  agent, 
providing  price  was  $20,000  net  to  vendors ;  agent,  as  commission, 
held  entitled  only  to  difference  between  excess  over  $20,000  re- 
ceived for  land,  or  $1,000,  less  amount  paid  by  vendors  for  taxes 
under  the  contract,   for  which  purchaser  was  otherwise  liable. 
Atwood  v.  Gugel,  165  K  W.  1085,  166  Wis.  430. 

(139)  In  an  action  by  plaintiff  for  commission  for  alleged  sale 
of  real  estate  for  defendant,  evidence  held  not  to  sustain  plain- 
tiffs contention  that  sale  by  defendant  of  his  land  to  wife  of  an- 
other broker,  and  a  later  purchase  of  other  land  from  such  broker 
was,  in  fact,  a  sale  to  plaintiff's  customer.    Mullen  v.  Crawford, 
166  N.  W.  694,  —  Iowa  Sup.  — . 

(140)  In  an  action  for  real  estate  commissions  in  deal  con- 
summated by  another  broker,  evidence  held  to  show  that  plain- 
tiffs were  the  procuring  cause,  that  they  had  negotiated  with  dili- 
gence, and  that  defendants  had  refused  to  cooperate  with  plain- 
tiffs.   E.  8.  Truitt  &  Co.  v.  Gardner,  203  S.  W.  638,  —  Mo. 
App.  — . 

(141)  If  real  estate  agents  know,  or  should  know  at  the  time 
of  exchanging  properties,  that  one  party  is  so  mentally  deranged 
as  to  be  incompetent  to  transact  such  business,  they  may  be  re- 
quired to  respond  in  damages  as  participants  in  fraud.    Carson  v. 
Schoenfeld,  166  N.  W.  23,  166  Wis.  401,  L.  E.  A.  1918  C,  162. 

(142)  Evidence  held  to  sustain  finding  of  collusion  between 
agent  of  plaintiff  for  purchase  of  farm  and  third  person,  resulting 
in  damage  to  plaintiff  in  the  enhanced  price  he  was  compelled  to 
pay  for  the  land.    MillenJcamp  v.  Willeriburg,  169  N.  W.  112   — 
Iowa  Sup.  — . 

(143)  Evidence  held  to  show  that  the  broker  who  signed  es- 
crow instructions  had  no  authority,  actual  or  ostensible,  to  charge 
the  same.    Jones  v.  Title  Guarantee  &  Trust  Co.,  173  P.  586,  — 
Cal.  Sup.  — . 

(144)  Eealty  brokers'  complaint,  if  considered  as  seeking  dam- 
ages to  extent  of  commissions  on  sale  of  realty  of  estate  because 


864  AMERICAN   LAW   HEAL   ESTATE    AGENCY. 

of  alleged  prevention  of  performance;  held  insufficient,  as  failing 
to  allege  that  brokers,  within  specified  time,  either  before  or 
subsequent  to  revocation  of  their  authority  by  executrices,  pro- 
cured or  could  have  procured  purchaser  ready,  able  and  willing 
to  buy  at  the  price  and  on  the  terms  fixed.  Merkeley  v.  Fisk, 
178  P.  945,  —  Cal.  Sup.  — . 

(145)  In  broker's  action  for  commission  for  the  sale  of  mill 
property  owned  by  defendants,  in  part  for  cash  and  in  part  for 
mortgage,  evidence  held  insufficient  to  show  that  plaintiff  was  to 
be  paid  a  commission  only  if  the  broker  made  sale  for  $250,000 
cash.    Johnstone  v.  Cochrane,  121  N.  E.  529,  —  Mass.  Sup.  — . 

(146)  Where  broker  claimed  as  commission  for  procuring  a 
lease,  the  whole  of  the  fund  of  commission  money  deposited  by 
lessor,  with  consent  of  above  plaintiff  and  defendant  brokers,  with 
lessee,  who  subsequently  deposited  it  in  court,  court  is  without 
power  to  divide  fund  on  ground  which  brokers  were  a  contributing 
factor  in  procuring  lease,  but  must  give  fund  to  one  or  the  other, 
the  plaintiff  or  defendant,  whichever  might  be  found  to  have  been 
the  effective  cause  of  closing  the  transaction.    Lewis  B.  Preston, 
Inc.  v.  Rice,  173  N.  Y.  Sup.  691. 

(147)  A   statement   of   claim   against   a  broker   which   avers 
breach  of  contract  to  invest,  sounds  in  negligence  and  not  in  de- 
ceit.   Heiser  v.  Reynolds,  106  A.  888,  —  Pa.  Sup.  — . 

(148)  A   declaration  by  the  owner  of  city  property   against 
brokers  whom  she  had  engaged  to  trade  it  for  farm  land,  who 
alleged  that  they  fraudulently  misrepresented  the  price  at  which 
the  owner  of  the  farm  land  was  willing  to  dispose  of  the  same, 
and  thus  made  a  secret  profit;  held,  not  open  to  demurrer,  on  the 
ground  that  it  did  not  aver  the  brokers  were  not  mere  middle- 
men.   Schmidt  v.  Wellinger,  99  S.  E.  680,  125  Va.  361. 

(149)  A  contract  whereby  a  broker  was  to  sell  or  offer  real 
and  personal  property,  providing  for  an  ultimate  sum,  without 
reference  to  the  separate  value  of  any  particular  item;  held,  not 
severable  as  to  the  realty.     Rugh  v.  Solein,  180  P.  930,  —  Or. 
Sup.  — . 

(150)  The  fact  that  plaintiff  broker  communicated  to  defend- 
ant, his  principal,  an  opportunity  to  sell  land  for  church  pur- 
poses, and  thereupon  sent  to  the  church  authorities  a  map  pre- 
pared by  defendant  indicating  a  favorable  church  location,  and 


PLEADINGS,  PBACTICE,  ETC.  865 

some  time  thereafter  a  sale  of  such  property  was  actually  made 
to  the  church,  was  sufficient,  prima  facie,  to  establish  that  such 
plaintiff  was  the  procuring  cause  of  the  sale.  Malia  v.  Douglaston 
Realty  Co.,  176  N.  Y.  Sup.  559. 

(151)  In  action  for  commission  for  the  sale  of  real  estate,  it 
is  not  necessary  to  show  the  financial  standing  of  the  person  with 
whom  the  purchaser  had  made  arrangements  to  borrow  the  money 
to  pay  for  the  land,  and  his  ability  to  furnish  the  money,  in  order 
to  show  that  a  purchaser  had  been  procured  who  was  ready  and 
able  to  purchase  the  farm,  especially  where  testimony  of  the  pur- 
chaser that  he  had  the  money  to  pay  for  the  place  was  uncontra- 
dicted.    Farrell  v.  Almgren,  211  111.  App.  654. 

(152)  In  an  action  by  a  broker  against  a  purchaser  of  land 
to  have  a  lien  declared  on  the  land,  there  having  been  an  agree- 
ment by  the  grantor  to  pay  the  broker  a  certain  commission  if  a 
corporation  leasing  the  land  should  exercise  an  option  to  purchase 
the  land,  evidence  held  sufficient  to  warrant  the  chancellor  in  find- 
ing that  the  sale  to  the  grantee  was  colorable  merely,  and  that 
the  real  sale  was  to  grantee's  brother,  who  was  the  major  stock- 
holder in  the  lessee  corporation.    Sanders  v.  Berry,  214  S.  W.  58, 

—  Ark.  Sup.  — . 

(153)  In  a  suit  by  a  corporation  to  recover  from  a  real  estate 
agent  whom  it  had  engaged  to  purchase  a  factory  site,  evidence 
held  sufficient  to  establish  that  the  agent  occupied  toward  the  cor- 
poration a  fiduciary  relation,  so  that  he  was  not  warranted  in 
making  a  secret  profit.    H.  J.  Jaeger  Co.  v.  Hannan,  108  A.  1, 

—  N.  J.  Eq.  — . 

(154)  Damages  for  breach  of  contract  to  give  commission  of 
one  dollar  per  acre  for  "following  up  work  and  closing  land  deals 
with  customers,"  defendant  doing  the  work  himself,  is  not  neces- 
sarily one  dollar  per  acre,  the  amount  depending  on  work  saved 
and  outlay  which  would  have  been  required  to  earn  the  commis- 
sion of  one  dollar  per  acre  in  a  particular  instance,  and  mere 
proof  of  breach  of  contract  not  being  proof  that  any  damage  was 
suffered.    Patterson  v.  HoJinson,  174  N.  W.  363,  —  Iowa  Sup.  — . 

(155)  Where  an  owner  of  land  employed  an  agent  to  sell  for 
a  flat  price,  making  no  misrepresentation  of  acreage,  and  the  agent 
sold  to  the  state  under  representation  of  acreage,  accounting  to 
the  owner  only  on  the  basis  of  the  authorized  price,  though  in 


866  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

fact  more  was  received;  after  abatement  of  price  to  be  paid  by 
the  state  on  account  of  acreage  shortage,  the  agent  is  not  entitled 
to  a  corresponding  credit  for  sucli  shortage  on  his  note  to  the 
owner.  Salmon  v.  Deese,  218  S.  W.  657,  —  Ark.  Sup.  — . 

(156)  Where  a  contract  for  the  sale  or  exchange  of  real  estate 
provided  for  a  "regular  fixed  commission,"  as  adopted  by  a  named 
real  estate  exchange,  the  fact  that  only  rate  of  commission  so  fixed 
was  a  maximum  rate;  held,  not  to  render  the  contract  ineffective, 
under  Burns's  Ann.  Stat.  1914,  Sec.  7463,  such  statute  requiring 
only  that  the  contract  import  to  pay  a  commission,  and  provide  a 
means  of  ascertaining  the  amount  thereof,  without  destroying  the 
character  of  the  contract  as  a  written  instrument.     StocJcberger 
v.  Zane,  125  N.  E.  65,  —  Ind.  App.  — . 

(157)  In  a  suit  by  one  broker  against  another  to  recover  one- 
half  of  the  commission  for  sale  of  realty,  in  which  defendant's 
theory  was  that  plaintiff  was  entitled  to  share  in  commissions  only 
if  sale  was  made  to  certain  parties;  evidence   held  to   warrant 
finding  for  plaintiff.    Treadwell  v.  Key,  215  S.  W.  728,  —  Ark. 
Sup.  — . 

(158)  Plaintiff,  real  estate  broker,  suing  to  recover  commis- 
sions for  making  a  sale  of  an  apartment  hotel,  is  not  entitled,  as 
a  matter  of  law,  to  recover,  where  the  evidence  warranted  finding 
that  the  sale  was  an  independent  transaction,  with  which  neither 
plaintiff  nor  his  assistant  had  anything  whatever  to  do.     Blanch- 
ard  v.  Liberty  Trust  Co.,  125  N.  E.  180,  —  Mass.  Sup.  — . 

(159)  For  procuring  lease,   including  agreement  that,   at  its 
expiration,  lessors  and  the  lessee  pay  a  percentage  of  costs  of  im- 
provements, or  grant  a  further  term;  held,  in  a  suit  brought  be- 
fore expiration  of  the  first  term  commission,  and  on  gross  rentals 
for  the  first  term  alone,  their  claim  for  commission  on  the  op- 
tional renewal  lease  not  being  determinable  prior  to  the  granting 
of  such  renewal  lease  by  the  lessors.     McMahon  v.  Beard,  122 
N.  Y.  Sup.  475. 

(160)  In  an  action  by  broker  who  introduced  the  purchaser  to 
the  seller,  evidence  held  insufficient  to  show  agency,  it  appearing 
that  the  broker  ascertained  the  premises  were  for  sale,  and  in- 
formed the  vendor's  wife  that  he  would  bring  a  client  to  view 
them.    Ooetz  v.  Berman,  111  A.  235  (Del.  Super.). 


PLEADINGS,  PEACTICB,  ETC.  867 

(161)  In  an  action  by  a  broker  to  recover  a  commission  for 
procuring  the  sale  of  an  oil  lease,  the  defense  was  that  the  sale 
was  procured  through  the  misrepresentation  and  fraud  of  the 
broker,  and  as  there  was  evidence  tending  to  sustain  the  defense, 
and  further,  that  because  of  the  fraud  a  sale  made  was  rescinded, 
it  was  the  duty  of  the  trial  judge,  upon  request  of  the  owner,  to 
make  a  finding  as  to  whether  or  not  the  broker  was  guilty  of 
fraud  in  the  transaction,  and  whether  or  not  the  sale  so  rescinded 
and  the  services  of  the  broker  became  worthless  because  of  the 
fraud  of  the  broker.  Langston  v.  Hoyt,  194  P.  654,  —  Kan. 
Sup.  — . 

Sec.  1054.    In  an  action  for  compensation,  verdict  on  con- 
flicting evidence  usually  upheld. 

There  being  a  conflict  of  evidence  the  question  is  exclusively 
for  the  jury,  and  a  finding  will  not  be  disturbed  on  appeal. 
Mousseau  v.  Dorsett,  80  Ga.  566,  5  S.  E.  780;  Semple  v.  Band, 
112  Iowa  616,  84  N.  W.  683 ;  Hall  v.  Grace,  179  Mass.  400,  60 
N.  E.  932;  Holschien  v.  Fehleg,  55  Mo.  App.  375;  Sherwin  v. 
O'Connor,  24  Neb.  603,  39  N.  W.  620;  Abraham  v.  Burstein,  178 
N.  Y.  586,  70  N.  E.  1094;  Smith  v.  Cutter,  66  N.  Y.  S.  332,  54 
App.  Div.  618 ;  Van  Sicler  v.  Herbst,  51  N.  Y.  S.  968,  30  App. 
Div.  255;  Chase  v.  Veal,  83  Tex.  333,  18  S.  W.  597;  Faulkner  v, 
Crawford,  177  S.  W.  35,  119  Ark.  6;  Sill  v.  Ceschi,  140  P.  949, 
167  Gal.  698;  Naylor  v.  Ashton,  130  P.  181,  20  Gal.  App.  544; 
Monroe  v.  Orr,  171  111.  App.  655;  Nat.  Milling  Co.  v.  Kirby,  94 
A.  149,  —  E.  I.  — ;  Evans  v.  Russell,  147  N.  W.  489,  180  Mich. 
534;  Konda  v.  Fay,  136  P.  514,  22  Gal.  App.  722;  Brooks  v. 
Lewis,  77  S.  E.  101,  12  Ga.  App.  260;  Shead  v.  Louisiana  Lum- 
ber Co.,  182  111.  App.  310;  Parker  v.  Land  &  Imp.  Co.,  165  P. 
1086,  —  Wash.  Sup.  — ;  Williamson  v.  Martin  Osburn  Realty 
Co.,  91  S.  E.  510,  19  Ga.  App.  425;  Chaleff  v.  Mendelsohn,  164 
N.  Y.  Sup.  680;  Shannon  v.  Cobbell,  67  Pa.  Super.  Ct.  538;  An- 
derson v.  Reiter,  198  111.  App.  581 ;  Nix  v.  Tomlinson,  200  S.  W. 
897,  —  Tex.  Civ.  App.  — ;  Wayler  v.  N  orris,  205  111.  App.  69; 
Sickafus  v.  Vickrey,  206  111.  App.  584;  Fergason  v.  Quick,  79  S. 
83,  rev.  judg.  on  sug.  of  re.,  78  S.  618,  —  Miss.  Sup.  — ;  Red 
River  Valley  Land  Co.  v.  Hutchison,  170  N.  W.  317,  —  N.  D. 
Sup.  — ;  Davis  v.  Joiner  Realty  Co.,  99  S.  E.  60,  —  Ga.  App.  — ; 


868  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Baker  v.  Greer,  208  S.  W.  755;  Mooney  v.  Burgess,  172  K  W. 
308,  —  Minn.  Sup.  — ;  Hensley  v.  IFaflto'ns,  101  S.  E.  758,  —  Ga. 
App.  — ;  Murphy  v.  W.  &  W.  Live  Stoclc  Co.,  187  P.  187,  re. 
den.,  189  P.  857,  —  Wyo.  Sup.  — ;  Frank  Hart  Realty  Co.  v. 
Ryan,  218  S.  W.  412,  —  Mo.  App.  — ;  Pixley  v.  Gonder,  189  P. 
149,  —  Kan.  Sup.  — ;  Kirby  Lumber  Co.  v.  West,  220  S.  W. 
639,  —  Tex.  Civ.  App.  — ;  Ramezzano  v.  Avansino,  189  P.  681, 
• —  Nev.  Sup.  — . 

Sec.  1055.    Verdict  must  be  palpably  against  weight  of  evi- 
dence to  warrant  setting  aside. 

A  judgment  by  the  trial  court  to  which  the  law  and  facts  are 
submitted  will  be  treated  on  appeal  as  the  verdict  of  a  properly 
instructed  jury  and  will  not  be  reversed  unless  palpably  against 
the  weight  of  the  evidence.  Summers  v.  Summers,  26  Ky.  L.  E. 
179,  80  S.  W.  1154;  Gallagher  v.  Bell,  89  Minn.  291,  94  N.  W. 
867;  Fish  v.  Calvin,  2  Silver  (N.  Y.  Supreme)  450,  6  N.  Y. 
S.  64;  Ross  v.  Decker,  68  N.  Y.  S.  790,  34  Misc.  168;  Holland 
v.  Howard,  105  Ala.  538,  17  S.  35;  Loeb  v.  Teppee,  112  N.  Y. 
S.  1043;  Scott  v.  O'Hair,  188  111.  App.  26. 

Sec.  1055a.    Answer  made  by  the  court  to  a  juror  held  not  to 
constitute  error  to  set  aside  verdict. 

In  an  action  to  recover  commissions  on  a  sale  or  exchange 
of  real  estate,  the  defendant  both  admitted  that  the  agreement 
had  been  made  and  averred  that  it  was  conditional  only,  and 
was  not  to  be  carried  out  if  the  defendant  needed  the  money 
provided  by  the  agreement  for  a  mining  enterprise  in  which 
he  was  interested.  He  testified  that  the  money  was  needed  in 
the  enterprise,  and  that  the  agreement  was  never  carried  out. 
(The  evidence  showed  that  nothing  was  said  about  money  when 
the  negotiations  commenced,  nor  when  the  property  was  placed 
in  the  hands  of  the  plaintiff  for  sale.  At  the  trial,  a  juror  asked 
whether  there  was  "any  evidence  that  there  was  anything  said 
about  money  when  they  entered  into  this  proceeding  ? "  to  which 
the  court  replied :  ' '  Nothing  was  said  about  money.  I  will  leave 
to  you  the  whole  case,  whether  there  was  any  understanding  as 
to  the  payment  of  money  or  not,  or  that  the  defendant  could 


PLEADINGS,  PRACTICE,  ETC.  869 

finally  withdraw  the  proposition  when  he  got  ready."  Held, 
that  the  answer  of  the  court  was  not  ground)  for  reversal  of 
the  verdict  and  judgment  for  plaintiff.  Mitchell  v.  Edeburn, 
37  Pa.  Super.  Ct.,  223. 

Sec.  1056.    Verdict  not  set  aside  because  if  for  adverse  party 
it  would  have  been  sustained. 

"The  evidence  is  indeed  so  strong  in  defendant's  behalf  that 
had  the  verdict  been  for  him  no  one  would  have  thought  of  ques- 
tioning it,"  but  that  does  not  justify  setting  it  aside;  Veale  v. 
Greene,  105  Mo.  App.  182,  79  S.  W.  731 ;  nor  where  the  evidence 
is  conflicting  does  the  fact  that  the  appellate  court  might  have 
reached  a  different  conclusion.  Brand  v.  Merritt,  15  Colo.  286, 
25  P.  175. 

Sec.  1057.    Verdict  not  disturbed  on  account  of  evidence  of 
ratification. 

In  an  action  by  a  real  estate  broker  to  recover  commissions, 
it  appeared  that  defendant's  husband  had  an  interview  with 
plaintiff  in  regard  to  the  sale  of  her  land,  and  that  subsequently, 
in  response  to  a  letter  from  plaintiff  the  husband  called  at  his 
office,  and  was  introduced  to  T.,  who  later  showed  defendant  and 
her  husband  land  that  he  wished  to  exchange,  but  it  did  not 
suit  defendant;  afterward,  she  accepted  another  offer  made  by 
T.  -  to  buy  the  land ;  on  the  trial,  defendant  and  her  husband 
attempted  to  suppress  their  own  testimony,  and  their  conduct 
justified  a  belief  that  defendant  had  authorized  or  ratified  her 
husband's  act.  Held,  that  a  verdict  for  plaintiff  would  not  be 
disturbed.  Sims  v.  Rockwell,  156  Mass.  372,  31  N.  E.  484. 

Sec.  1058.    Verdict  set  aside,  where  loan  was  refused  because 
interest  was  too  high. 

A  verdict  for  plaintiff  will  be  set  aside  as  against  the  weight 
of  the  evidence  where,  on  the  issue  whether  defendant  agreed 
to  pay  six  per  cent,  interest  for  a  loan,  so  as  to  render  him 
liable  to  plaintiff  for  procuring  a  person  ready  to  make  the  loan 
at  that  price,  defendant  testified  that  he  did  not  agree  to  pay 
six  per  cent.,  and  his  testimony  was  contradicted  only  by  the 


870  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

agent  through  whom  the  loan  was  made,  who  testified  to  a  con- 
versation with  defendant  about  the  loan,  and  stated  that  the 
rate  of  interest  was  to  be  six  per  cent.,  but  stated  no  conversa- 
tion to  that  effect,  and  testified  that  he  wrote  defendant  the 
next  day  that  he  would  make  the  loan  at  six  per  cent. ;  that  de- 
fendant at  once  refused,  because  the  interest  was  too  high,  and 
that  he  told  plaintiff  that  he  (defendant)  refused  the  loan  when 
the  question  of  interest  was  broached,  since  it  is  apparent  that 
the  statement  that  six  per  cent,  was  to  be  paid  was  merely  an 
inference  by  the  witness.  Crandall  v.  Philips,  43  N.  Y.  S.  299, 
13  App.  Div.  118. 

Sec.  1059.    Verdict  not  directed  for  plaintiff,  where  customer 
was  not  of  restricted  class. 

Where  the  evidence  of  plaintiff,  suing  to  recover  commissions 
for  procuring  a  purchaser  for  defendant's  land,  of  itself  makes 
out  a  case,  the  court  will  not  direct  a  verdict  in  his  favor,  if 
the  evidence  of  the  defendant  shows  that  under  the  contract 
plaintiff  was  restricted  to  negotiate  a  sale  with  certain  persons, 
and  the  one  procured  by  him  did  not  belong  to  that  class.  Meyer 
v.  Strauss,  58  N.  Y.  S.  904,  42  App.  Div.  613. 

Sec.  1060.    Verdict  for  commissions  not  supported,  where  sale 
varied  from  authorization. 

Defendant  agreed  to  pay  plaintiff  $100  to  find  a  purchaser 
for  a  farm  at  $2,400,  the  purchaser  to  receive  one-third  of  the 
crops ;  defendant  procured  a  purchaser  who  agreed  to  pay  $2,400 
for  the  land  and  the  landlord's  share  of  the  crops ;  there  was  no 
evidence  as  to  what  constituted  the  landlord's  share  of  the  crops, 
or  of  the  purchaser's  ability  to  pay.  Held,  that  the  evidence  was 
not  sufficient  to  support  a  verdict  for  his  commissions.  Howie  v. 
Bratrud,  14  S.  Dak.  648,  86  N.  W.  747;  Haskell  v.  Beighly 
(Kan.  Sup.  '08),  96  P.  134;  Shuck  v.  Conway,  179  N.  W.  434,  — 
Iowa  Sup.  — . 

Sec.    1061.    Verdict  directed  for  defendant  erroneous,  when 
not  justified  in  believing  broker  recreant. 

Defendant  wrote  plaintiff  authorizing  him  to  sell  defendant's 
timber  land  in  Arkansas,  agreeing  that  if  plaintiff  put  defendant 


PLEADINGS,  PRACTICE,  ETC.  871 

in  communication  with  a  reliable  purchaser  defendant  would 
protect  plaintiff  on  a  commission  of  five  per  cent. ;  plaintiff  im- 
mediately corresponded  with  a  purchaser  who,  at  plaintiff's  di- 
rection, wired  defendant  for  the  price,  and  this  being  agreed 
on,  the  purchaser  wrote  plaintiff  a  letter  concerning  the  prop- 
erty, enclosing  a  skeleton  option,  which  he  desired  defendant  to 
execute;  plaintiff  then  went  to  defendant's  place  of  business 
and  showed  him  the  purchaser's  letter  with  the  option,  and  de- 
fendant, after  some  delay,  signed  the  option,  after  inserting  that 
the  price  should  be  net  cash  to  him,  but  without  any  statement 
that  it  was  to  be  free  of  commissions.  Held,  that  defendant  was 
not  justified  in  believing  that  plaintiff  was  acting  for  the  pur- 
chaser, and  that  it  was,  therefore,  error  for  the  court  to  direct 
a  verdict  for  defendant  in  plaintiff's  action  for  commissions. 
Love  v.  Scatcherd,  146  Fed.  1,  77  C.  C.  A.  1. 

Sec.  1062.    Verdict  for  broker  not  sustained  by  inviting  atten- 
tion of  public  to  land  and  negotiating. 

In  an  action  for  commissions  for  the  sale  of  land,  evidence 
that  plaintiff  invited  the  attention  of  the  public  to  the  property, 
and  used  time  in  active  negotiations  for  its  purchase,  and  that 
the  final  purchase  resulted  from  a  continuation  of  the  pre-exist- 
ing negotiations,  unaffected  by  the  broker's  acts,  was  insufficient 
to  sustain  a  verdict  for  plaintiff.  Sexton  v.  Goodrich,  131  Wis. 
146,  111  N.  W.  206. 

Sec.  1063.    Awarding  less  than  plaintiff  entitled  to,  styled  a 

"Sancho  Panza"  verdict. 

Plaintiff  was  employed  by  defendant  B.  to  sell  640  acres  of 
land  for  $15  an  acre  cash  to  B.  and  as  much  more  to  plaintiff  as 
he  could  get;  plaintiff  induced  defendant  M.  to  purchase  for 
$19.50  per  acre,  and  to  deposit  such  amount  subject  to  a  tender 
of  title;  it  was  thereafter  discovered  that  B.  could  only  convey 
538  acres,  whereupon,  in  order  to  consummate  the  deal,  it  was 
arranged  that  a  sale  of  this  amount  should  be  made  at  $15  an 
acre,  and  that  the  purchaser  should  pay  plaintiff  $300,  and  that 
B.  should  pay  plaintiff  $600,  to  which  plaintiff  agreed;  it  was 
subsequently  discovered  that  B.'s  title  was  good  only  to  338 
acres,  which  were  conveyed.  Held,  that  the  agreement  by  both 


872  AMEEICAN  LAW  REAL  ESTATE  AGENCY. 

the  owner  and  the  purchaser  to  pay  such  amount  to  plaintiff 
was  based  on  sufficient  consideration,  and  that  plaintiff  was  en- 
titled to  recover  on  such  contract  and  not  on  a  quantum  meruit. 
1 '  The  case  was  given  to  the  jury  without  a  charge ;  this,  perhaps, 
accounts  for  the  Sancho  Panza  verdict  they  returned."  Brun- 
son  v.  Blair,  44  Tex.  Civ.  App.  43,  97  S.  W.  337. 


Sec.  1064.    Verdict  properly  directed  for  defendant  where 
the  plaintiff  violated  his  authority. 

In  an  action  to  recover  real  estate  brokers'  commissions, 
the  plaintiffs'  right  to  go  to  the  jury  depended  upon  whether 
their  evidence  tended  to  show  that  they  procured  a  purchaser 
ready,  able  and  willing  to  buy  their  principal's  land,  at  a  price 
and  upon  terms  which  they  were  authorized  to  make,  and  there 
being  no  evidence  that  they  were  authorized  to  agree  to  pay 
the  purchaser  $50  a  day  as  liquidated  damages  for  a  breach 
of  the  contract  to  convey,  and  to  secure  the  same  by  a  lien  on 
the  land,  or  that  the  proposed  purchaser  would  have  taken  the 
lands  without  such  agreement,  a  verdict  was  properly  directed 
for  defendant.  Evarts  v.  Fuqua  (Tex.  Civ.  App.  '08),  111  S. 
W.  675;  affirmed  118  S.  W.  132. 

Sec.   1064a.     On  owner  releasing  purchaser  from  contract, 
broker  entitled  to  verdict  for  commission. 

The  defendant  agreed  to  pay  plaintiffs  an  ultimate  sum  as 
commission  for  selling  his  land,  and  plaintiffs  procured  a  pur- 
chaser who  entered  into  a  written  contract  with  defendant  to  pur- 
chase the  land  upon  defendant's  terms,  and  on  the  purchaser's 
failure  to  comply  with  the  contract,  the  defendant  sued  the  pur- 
chaser for  specific  performance,  which  suit  was  compromised  and 
the  purchaser  released  from  his  agreement,  without  the  knowledge 
of  plaintiffs.  Held,  that  the  plaintiffs  were  entitled  to  a  directed 
verdict  for  the  amount  of  their  commission.  Kirkland  &  Sons  v. 
Berry,  136  S.  W.  832,  —  Tex.  Civ.  App.  — ;  Lawler  v.  Armstrong, 
102  P.  775,  53  Wash.  664;  Ferguson  v.  Turner,  194  P.  1103,  — 
Colo.  Sup.  — . 


PLEADINGS,  PRACTICE,  ETC.  873 

Sec.  1064b.    Verdict  against  the  manifest  weight  of  the  evi- 
dence. 

Where  the  evidence  shows  that  plaintiff,  while  negotiating  a 
trade  between  defendant,  owner  of  a  flat  building,  and  owner  of  a 
farm,  was  informed  by  letter  that  they  could  not  make  a  trade, 
and  defendant  was  so  notified,  and  it  further  appears  that  a  trade 
was  subsequently  effected  by  another  agent,  who  had  previously 
offered  the  same  farm,  though  it  had  not  been  known  by  defend- 
ant that  the  farms  were  the  same,  a  verdict  for  defendant  is 
against  the  manifest  weight  of  the  evidence.  Tomascwski  v.  An- 
derson, 172  111.  App.  274 ;  Donnell  v.  First  Mtge.  &  E.  E.  Co., 
153  N.  Y.  Sup.  218;  Paulson  v.  RourTce,  145  P.  711,  26  Colo. 
App.  488;  Knotts  v.  L.  S.  &  M.  S.  E.  Co.,  172  111.  App.  550. 

Sec.  1064c.    Verdict  held  supported  by  the  evidence. 

In  an  action  for  commission  for  procuring  a  purchaser  for  land 
which  was  conveyed  by  the  owner  to  the  purchaser,  verdict  held 
to  support  a  verdict  for  plaintiff.  Harvey  v.  Hain,  149  N.  W. 
236,  167  Iowa,  258;  Nelson  v.  Carlson,  153  K  W.  253,  130  Minn. 
131;  Ware  &  Harper  v.  Atlanta  Coffee  Mills  Co.,  86  S.  B.  47, 
16  Ga.  App.  749 ;  Johnson  v.  Doubrossky,  163  N.  W.  589,  —  Iowa 
Sup.  — . 

Sec.  1064d.    Verdict  for  $5,400  commission  not  excessive. 

A  verdict  of  2%  of  $270,000  for  a  theater  for  fifteen  years  for 
broker's  compensation  of  leasing,  where  lease  provided  lessees 
could  purchase  same  on  forfeiture  of  $9,000  deposited,  and  owner 
testified  services  were  worth  13,500,  if  rent  for  full  period  should 
be  paid,  is  not  excessive.  Brady  v.  Eichey  &  Casey,  202  S.  W. 
170,  —  Tex.  Civ.  App.  — . 

Sec.  1065.    Judgment  unjustifiable  ought  to  be  set  aside. 

Where  the  judgment  can  not  be  justified  upon  any  hypothesis 
presented  by  the  pleadings  or  evidence  it  ought  to  be  set  aside. 
Also,  where  not  sustained  by  the  evidence,  being  excessive.  Ham- 
mers v.  Merrick,  42  Kan.  32,  21  P.  783;  Wulhart  v.  Weinstein, 
91  N.  Y.  S.  359. 


giJ-4  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  1065a.    Reduction  by  the  court  of  an  excessive  verdict. 

Defendants  agreed  that  if  plaintiffs  would  procure  purchasers 
for  lands,  defendants  would  pay  them  fifty  cents  an  acre  for 
their  services.  Plaintiffs  procured  purchasers  for  3,360  acres, 
to  be  thereafter  selected;  but,  owing  to  the  fact  that  defendants 
did  not  own  or  control  the  lands  as  represented,  the  transaction 
failed.  Held,  that  a  verdict  of  $1,680  for  plaintiffs  was  exces- 
sive, and  should  be  reduced  to  $1,200,  as  it  was  not  certain 
that  all  of  the  purchasers  would  have  made  selections  and  pur- 
chased the  lands  for  which  they  subscribed.  Peavey  v.  Greer 
(Minn.  Sup.  '09),  121  N.  W.  875. 

Sec.  1065b.    Evidence  insufficient  to  sustain  verdict  for  plain- 
tiff for  procuring1  loan. 

In  a  suit  to  recover  commissions  for  obtaining  a  loan  for  de- 
fendant, evidence  held  insufficient  to  sustain  a  verdict  that  plain- 
tiff had  procured  one  able  and  willing  to  make  the  loan,  and  had 
effected  performance  before  defendant  terminated  the  transac- 
tion. Van  Bayer  v.  Ninigret  Mills  Co.,  150  N".  Y.  Sup.  291,  164 
App.  Div.  698;  Turner  v.  Garrard,  198  S.  W.  655,  —  Tex.  Civ. 
App.  — . 

Sec.  1066.    Judgment  of  appellate  court  conclusive. 

In  an  action  for  commissions  for  services  as  broker,  the  amount 
which  the  plaintiff  is  entitled  to  recover  is  a  question  of  fact, 
on  which  the  judgment  of  the  appellate  court  is  conclusive. 
Smith  v.  May  field,  163  111.  447,  45  K  E.  157;  Kurtz  v.  Payne 
Inv.  Co.,  135  N.  W.  1075,  156  Iowa,  376,  pet.  for  re.  over,  but 
opinion  mod.,  137  N".  W.  460;  Evans  v.  Rullee,  183  P.  83,  — 
Wash.  Sup.  — . 

Sec.  1067.    Judgment  not  reversed  for  improper  evidence. 

A  judgment  in  favor  of  a  real  estate  agent  on  a  contract  to 
pay  a  definite  sum  as  a  commission  will  not  be  reversed  because 
the  trial  court  permitted  him  to  introduce  evidence  that  the 
amount  of  commission  alleged  to  be  paid  was  the  usual  charge 


PLEADINGS,  PRACTICE,  CTC.  875 

of  real  estate  agents  in  that  city  for  similar  services.    Branaman 
v.  Sherman,  49  Kan.  771,  31  P.  667. 

Sec.  1068.    In  an  action  on  a  judgment  error  to  submit  to  jury 

,  whether  agent  could  release. 

A  loan  broker  acted  as  agent  for  both  parties  in  the  negotia- 
tion of  a  loan,  which  was  to  be  secured  by  a  trust  deed  of  land 
encumbered  by  judgments;  the  amount  of  the  loan  was  sent  to 
him  by  the  lender  with  instructions  to  see  that  the  amount  re- 
quired by  the  terms  of  the  deed  be  applied  to  secure  a  release 
of  this  judgment  by  the  original  judgment  creditor;  a  trans- 
fer of  it  to  him  by  the  present  holder  was  so  applied ;  the  agent 
at  first,  being  unable  to  obtain  a  release,  took  a  transfer  of  the 
judgment,  and  afterwards  obtained  a  release,  which  he  for- 
warded to  the  lender;  the  transaction  was  completed,  and  sub- 
sequently, at  the  request  of  the  borrower,  and  without  any  fur- 
ther instructions  from  the  lender,  the  agent  entered  on  the 
margin  of  the  judgment  record  a  receipt  in  full  for  the  judg- 
ment. Held,  that  an  instruction,  in  an  action  to  obtain  execution 
under  the  judgment,  and  submitting  the  question  whether  the 
agent  was  authorized  to  execute  satisfaction  of  the  judgment; 
was  improper.  Brown  v.  Dennis  (Tex.  Civ.  App.  '95),  30  S. 
W.  272. 

Sec.  1069.    Judgments  unsustained  by  the  evidence. 

In  an  action  for  commissions  for  effecting  the  sale  of  a  house, 
it  appeared  that  defendant  agreed  to  give  plaintiff  $75  if  he 
should  sell  the  house  for  $500  by  a  certain  day,  $50  if  he  sold 
it  for  $400  after  that  day;  plaintiff  introduced  to  defendant 
a  purchaser  who,  after  the  day  specified,  purchased  the  house 
for  $350.  Held,  that  a  judgment  for  plaintiff  for  $35  was  not 
sustained  by  the  evidence.  Blackwell  v.  Adams,  28  Mo.  App. 
€1 ;  Jones  v.  Pendleton,  134  Mich.  460 ;  96  N.  Vf.  574. 

In  an  action  brought  to  recover  commissions  alleged  to  have 
been  earned  by  the  plaintiff  on  a  sale  of  real  estate  of  defendant 
for  military  purposes  to  the  government,  'through  his  agency, 
the  only  evidence  of  his  assistance  in  the  sale  was  that  he,  to 


876  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

some  extent,  helped  to  intensify  public  opinion  as  to  the  expedi- 
ency of  having  a  military  force  in  the  neighborhood.  Held,  that 
a  verdict  for  him  should  be  set  aside.  Com'l.  Nat.  Blc.  v.  Haw- 
kins, 35  111.  App.  463;  Haile  v.  Keller,  163  S.  W.  393,  —  Tex. 
Civ.  App.  — '.Klein  v.  Deutsch,  168  N.  Y.  Sup.  624;  McCrelass 
v.  Howell,  210  S.  W.  972,  —  Tex.  Civ.  App.  — ;  Werner  v.  Sil- 
verman,  174  N.  Y.  Sup.  185. 

Sec.  1070.    Judgment  for  a  smaller  amount,  when  it  will  not 
be  interfered  with. 

Where  an  action  was  brought  to  recover  commissions  for  effect- 
ing a  sale  of  real  estate,  and  the  testimony  shows  that  the  broker 
merely  procured  a  purchaser  who  purchased  the  premises  from 
the  owner,  Held,  that  a  judgment  awarding  the  broker  a  less  sum 
than  the  commissions  upon  a  completed  sale  will  not  be  set  aside. 
Gregg  v.  Loomis,  22  Neb.  174,  34  N.  W.  355.  Compare  Brunson 
v.  Blair,  44  Tex.  Civ.  App.  43,  97  S.  W.  337.  See  Sec.  1063. 

Plaintiff  sued  to  recover  commissions  for  obtaining  a  loan  for 
defendant,  and  testified  that  defendant  agreed  to  pay  one  and 
one-half  per  cent,  and  disbursements;  on  cross-examination  he 
testified  that  he  told  defendant  the  lawyer's  charges  would  be 
one  per  cent,  and  disbursements,  and  that  the  plaintiff's  charge 
would  be  two  and  one-half  per  cent.,  and  that  defendant  agreed 
to  pay  it.  Held,  that  a  judgment  for  only  one-half  per  cent,  was 
supported  by  the  evidence,  since  there  was  no  evidence  that 
defendant  promised  to  pay  the  plaintiff  the  attorney's  charges, 
or  that  plaintiff  had  promised  to  pay  such  amount  to  the  at- 
torney. Robert  v.  Sire,  67  N.  Y.  S.  860,  33  Misc.  755.  See  also 
Sec.  572. 

Sec.  1071.    Judgment  for  full  amount  error,  where  loan  failed 
through  defective  title. 

Where  an  agreement  was  made  to  pay  plaintiff  $800  if  he 
secured  a  certain  loan  for  defendant  on  its  property,  which  sum 
was  to  cover  all  fees,  lawyer's  charges,  disbursements,  etc.,  it 
was  error  to  grant  a  judgment  for  the  full  amount,  where  per- 
formance was  prevented  by  reason  of  defendant's  defective 


PLEADINGS,  PRACTICE,  ETC.  877 

title.    OattUng  v.  Central  Spar  Verein,  73  N.  Y.  S.  496.  67  App. 
Div.  50.    See  also  Sec.  572. 

Sec.  1071a.    Effect  of  a  judgment  as  barring  further  pro- 
ceedings. 

A  judgment  dismissing  an  action  on  an  express  promise  to 
pay  an  agreed  commission  for  selling  land,  entered  on  a  finding 
that  plaintiff  did  not  act  as  agent  for  defendant  in  the  sale,  and 
that  there  was  no  contract  for  a  commission,  is  a  bar  to  a  sub- 
sequent action  for  the  same  commission  based  on  an  express 
promise  to  pay  the  reasonable  value  of  the  services  after  they 
were  performed.  Krug  v.  Hendricks  (Wash.  Sup.  '09),  102 
P.  1049. 

Sec.  1071b.    Failure  of  proof. 

Where  a  broker  sued  on  an  express  contract  for  commissions, 
alleging  that  he  was  the  procuring  cause  of  the  sale  and  was  en- 
titled to  his  commissions,  whether  title  to  all  the  land  failed  or 
not,  and  testified  that  he  agreed  to  sell  the  whole  ranch,  and  that, 
unless  the  title  to  the  land  was  clear,  the  ranch  could  not  be  sold 
at  the  price,  but  did  not  prove  the  case  alleged,  and  could  not 
recover.  Jackson  v.  Blair,  165  S.  W.  522;  —  Tex.  Civ.  App.  — . 

Sec.  1071c.    Judgment  that  broker  did  not  retain  part  of  pur- 
chase price  authorized  by  evidence. 

In  an  action  for  a  percentage  of  profits  claimed  to  be  due  a) 
broker  on  account  of  purchase  and  sale  of  lands,  a  judgment 
finding  that  the  broker  did  not  retain  part  of  the  purchase  price 
of  a  subsequent  sale  as  a  commission;  held,  authorized  by  the  evi- 
dence. Mann  Bros.  v.  Reichert's  Etfr,  109  S.  W.  707,  160  Ky. 
308. 

Sec.  1071d.    Effect  of  garnishment  proceeding  upon  broker. 

Where  a  purchaser  of  a  business  agrees  to  pay  the  debts  of  a 
prior  owner  of  the  business,  and  subsequently  executes  a  power 
of  attorney,  and  addresses  a  letter  of  instructions  to  a  firm  of 


878  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

real  estate  brokers,  authorizing  the  brokers  to  sell  certain  lands 
which  were  his  private  lands,  apart  from  the  business,  and  to 
apply  the  proceeds  thereof  to  the  payment  of  the  debts  which  he 
had  assumed,  no  trust  in  the  proceeds  is  created  by  the  transac- 
tion in  favor  of  the  creditors,  and  the  brokers  can  not  retain  the 
proceeds  when  they  are  summoned  as  garnishees  in  an  attach- 
ment execution  issued  under  a  judgment  against  the  purchaser. 
Jones  v.  Keesey,  42  Pa.  Super.  Ct.  492;  Forbes  v.  Same,  42  Pa. 
Super.  Ct.  497. 


CHAPTER  XVIII. 

SECTION. 

1072-1078k.     Error. 

1079-1132.       Judicial   constructions  and  interpretations. 

Sec.  1072.    Error  in  sustaining  objection  of  plaintiff  to  evi- 
dence of  plaintiff's  receipt  in  settlement. 
It  was  held  that  the  trial  court  erred  when  it  sustained  an 
objection  made  by  plaintiff's  counsel  to  the  introduction  in  evi- 
dence of  a  stipulation  made  by  the  parties  in  a  former  suit  and 
filed  in  court,  in  which  the  plaintiff  acknowledged  the  receipt 
of  $90  in  full  settlement  and  payment  of  all  claims  and  demands 
arising  out  of  the  alleged  cause  of  action.    Davis  v.  Thomas,  87 
Minn.  301,  91  N.  W.  1100. 

Sec.  1073.    Error  to  instruct  for  plaintiff  that  agent  acting  for 
both  parties  may  receive  compensation  from  both 

Plaintiff  sued  for  commissions  for  purchasing  property  for 
defendants,  on  the  theory  that  with  defendant's  knowledge  he 
was  to  receive  commissions  from  both  defendants  and  the  vendor ; 
plaintiff,  however,  during  the  negotiations,  had  written  a  letter 
to  defendants  stating  that  if  they  were  under  the  belief  that 
he  expected  to  receive  commissions  from  both  sides,  they  were 
mistaken ;  that  if  he  received  a  commission  from  the  other  side,  he 
would  charge  defendants  only  for  legal  services;  on  receipt  of 
this  letter  defendants  forwarded  the  purchase  price.  Plaintiff 
testified  that  the  letter  was  written  at  the  instance  of  the  agent 
of  defendants,  who  promised  him  other  business  from  the  com- 
pany sufficient  to  repay  him  for  the  release  of  commissions. 
Held,  that  as  defendants'  agent  could  not  have  authority  to  de- 
ceive defendants,  and  as  the  jury  might  have  found  that  de- 
fendants acted  on  the  strength  of  the  letter,  it  was  error  to 
instruct  for  plaintiff;  that  if  an  agent  acts  for  both  he  may  re- 
ceive compensation  from  both,  and  that  if  the  letter  releasing 

879 


880  AMERICAN  LAW  REAL  ESTATE   AGENCY. 

commissions  was  written  in  consideration  of  further  business, 
which  they  refused  to  give  plaintiff,  he  was  entitled  to  recover. 
Lindt  v.  Schlitz  Brewing  Co.,  113  Iowa  200,  84  N.  W.  1059.  See 
also  Sec.  558. 

Sec.  1074.  Error  to  exclude  testimony  of  defendant  that  he 
was  ignorant  of  agent's  double  employment 

In  an  action  by  a  real  estate  broker  to  recover  commissions 
on  an  exchange  of  property  effected  by  him,  it  appearing  that 
plaintiff  was  in  the  employ  of  both  parties  to  the  exchange,  the 
court  erred  in  excluding  the  testimony  of  defendant  tending 
to  show  that  he  was  ignorant  of  the  double  employment  of  plain- 
tiff, of  which  plaintiff  testified  that  defendant  was  informed. 
Condit  v.  Sill,  18  N.  Y.  S.  97. 

Sec.  1075.  In  the  absence  of  evidence  it  was  not  error  to 
exclude  that  other  party  knew  agent  was  paid  by  de- 
fendant. 

In  an  action  to  recover  a  broker's  commissions  for  negotiating 
an  exchange  of  defendant's  property  for  the  property  of  L.  & 
W.,  where  there  was  no  evidence  that  defendant  knew  that  plain- 
tiff was  also  to  receive  commissions  from  L.  &  W.,  it  was  not 
error  to  exclude  evidence  that  L.  &  W.  knew  he  was  to  receive 
commissions  from  defendant.  Bellin  v.  Wein,  104  N.  Y.  S.  360. 

Sec.  1075a.  Circumstances  showing  no  error  in  refusing  to 
grant  non-suit. 

There  being  evidence  tending  to  show  that  the  real  estate  agent 
had  first  agreed  with  another  person  to  procure  a  purchaser,  and 
that  all  of  them  should  have  an  interest  in  the  land  and  should 
divide  it  into  lots  and  sell  it  for  a  profit,  and  that  subsequently 
such  third  person  stated  to  the  real  estate  agent  that  the  con- 
templated purchaser  who  would  furnish  the  money  to  pay  for 
the  land  and  whose  name  was  not  divulged  to  the  agent  was 
unwilling  for  the  agent  to  be  interested  in  the  enterprise,  and 
that  thereupon  it  was  agreed  between  the  agent  and  the  person 
with  whom  he  was  dealing,  that  the  latter  would  pay  a  certain 
amount  to  the  former,  in  consideration  and  in  satisfaction  of 
his  commission  on  relinquishing  any  further  claim  of  interest, 


PLEADINGS,  PBACTICE,  ETC.  881 

which  he  did;  in  a  suit  by  the  agent  against  the  person  making 
such  agreement,  and  others,  there  was  no  error  relatively  to  such 
person  in  refusing  to  grant  a  non-suit  or  direct  a  verdict  in  favor 
of  the  defendant.  Mitchell  v.  Gifford  (Ga.  Sup.  '10),  67  S.  E. 
197  (Syllabus). 

A  broker  made  negotiations  for  an  exchange  of  property  be- 
tween 0.  and  defendants.  0.  agreed  to  pay  to  the  broker  and  his 
partner  $4,650  commission  when  the  property  was  transferred. 
Defendants  refused  to  execute  the  contract  unless  the  broker 
would  accept  $1,500,  as  his  share  of  the  commission  out  of  the 
$4,650,  to  be  retained  by  defendants,  with  the  consent  of  0.  to 
pay  the  commission.  The  broker  finally  accepted  the  written 
promise  of  defendants  to  pay  him  $1,500  on  the  signing  of  the 
contract  with  0.  Held,  that  in  an  action  by  the  broker  to  re- 
cover $1,500,  a  non-suit  was  made,  on  the  ground  that,  if  the 
agreement  to  pay  that  sum  is  to  be  construed,  in  connection  with 
the  agreement  of  the  defendants  to  pay  $4,650  to  the  broker  and 
his  partner,  the  plaintiff  must  fail,  because  he  has  not  proved  per- 
formance of  the  agreement  to  pay  $4,650,  and  was  properly  re- 
fused a  non-performance  by  defendants,  and  their  contract  with 
0.  not  releasing  them  from  performing  their  contract  with  plain- 
tiff. Semkin  v.  Hollarder,  81  A.  980,  82  N.  J.  Law,  485. 

Sec.    1075b.    Error  in  awarding  verdict  to  real  estate  agent. 

Relatively  to  the  person  who  was  to  be  the  actual  purchaser 
and  pay  the  purchase  money,  there  was  no  evidence  sufficient 
to  show  that  he  knew  or  took  part  in  the  negotiations  with  the 
real  estate  agent  mentioned  in  the  preceding  headnote  or  that 
he  was  bound  by  any  promise  to  pay  commissions  of  the  agent, 
or  an  amount  for  the  latter's  making  no  claim  to  be  interested 
in  the  purchase  and  development  of  the  property.  A  verdict 
against  him  in  behalf  of  the  real  estate  agent  was  therefore,  not 
warranted  by  the  evidence.  Mitchell  v.  Gifford  (Ga.  Sup.  J10),  67 
S.  E.  197  (Syllabus.) 

Sec.    1075c.    Corporation  exempted  from  liability  for  commis- 
sion. 

The  same  is  true  of  a  corporation  which  was  formed  by  the 
purchaser  and  the  middleman  with  whom  the  real  estate  agent 
dealt,  some  time  after  the  agreement  of  purchase  was  made, 


882  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

and  which  corporation  took  over  the  land  and  improved  and 
sold  it.  The  evidence  did  not  show  that  any  such  corporation 
was  organized  or  in  contemplation  when  the  agreement  with  the 
real  estate  agent  was  claimed  to  have  been  made,  or  that  it  ever 
made  any  promise  or  did  anything  to  render  itself  liable  to  pay 
commissions  to  the  agent  on  acount  of  the  sale  of  the  land.  Id. 

Sec.  1075d.    When  error  to  grant  a  nonsuit. 

In  an  action  for  broker's  commission,  it  was  error  to  grant  de- 
fendant's motion  for  a  nonsuit,  if  the  evidence  would  have  justi- 
fied the  jury  in  finding  that  plaintiff  procured  a  purchaser  for 
defendant's  real  estate,  ready,  able  and  willing  to  purchase  on  the 
terms  fixed  by  defendants.  Davidson  v.  Siocky,  95  N.  E.  753, 
202  1ST.  Y.  423,  rev.  judg.,  123  K  Y.  Sup.  1113,  137  App.  Div. 
945. 

Sec.  1076.    Error  to  exclude  evidence  of  the  value  of  defend- 
ant's property. 

On  the  trial  of  an  action  for  a  broker's  commissions  on  an 
exchange  of  property  in  which  the  defense  was  that  the  defend- 
ant had  been  induced  to  part  with  his  property  by  plaintiffs 
false  representations;  after  plaintiff  had  been  permitted  to  tes- 
tify that  defendant  had  told  him  that  his  property  would  not 
sell  for  the  amount  of  the  mortgage  on  it,  and  also  that  in  plain- 
tin0 's  opinion,  defendant's  property  was  worth  less  than  that 
exchanged  for  it,  defendant  attempted  to  prove  the  value  of 
his  property,  but  the  evidence  was  excluded ;  the  court  afterward, 
on  plaintiff's  request,  charged  that  if  defendant  did  not  rely  on 
any  false  representations  made,  plaintiff  must  recover.  Held, 
that  the  exclusion  of  the  evidence  of  the 'value  of  defendant's 
property  was  error.  Walker  v.  Johnson,  46  N.  Y.  S.  864,  21 
Misc.  16.  See  also  Sec.  194. 


Sec.  1076a.    Error  to  withdraw  from  the  consideration  of  the 
jury  the  number  of  acres  sold. 

In  an  action  for  the  breach  of  an  agreement  to  permit  plaintiff 
to  sell  land  on  commission,  where  the  number  of  acres  in  the 


PLEADINGS,  PRACTICE,  ETC.  883 

tract  was  uncertain,  the  amount  which  plaintiff  was  entitled  to 
recover  depending  on  the  number  of  acres,  was  for  the  jury,  so 
that  it  was  error  to  charge  that  plaintiff  was  entitled  to  recover 
a  certain  sum,  if  they  found  the  contract  as  alleged.  Jackson 
v.  Stephenson  (Tex.  Civ.  App.  '08),  114  S.  W.  848. 

Sec.  1076b.    Exclusion  of  evidence  that  principal's  land  was 
worth  less  than  asked  for  it,  not  error. 

In  principal's  action  for  damages  for  false  representations  by 
real  estate  agent  inducing  an  exchange  of  properties,  exclusion  of 
evidence  that  principal's  land  was  not  worth  what  he  asked  for 
it  was  not  error.  Suderman  v.  Koch,  168  P.  906,  101  Kan.  708. 

Sec.  1077.    It  is  not  error  to  prove  by  plaintiff  that  no  sale 
was  made. 

In  an  action  by  a  broker  to  procure  a  purchaser  of  real  estate 
for  his  commissions,  it  is  not  error  to  allow  defendant  to  prove 
by  plaintiff's  testimony  that  no  sale  of  the  premises  had  in  fact 
been  made.  Runck  v.  Dimmick,  111  S.  W.  779  (Tex.  Civ. 
App.  '08.) 


Sec.  1078.     Error  to  dismiss,  where  plaintiff  employed  to  se- 
cure a  purchaser,  shows  sale  to  his  customer. 

Where  a  broker,  suing  for  commissions,  showed  that  he  was 
employed  to  procure  a  purchaser  of  real  estate  on  terms  speci- 
fied, and  that  he  called  the  property  to  the  attention  of  a  third 
person,  who  examined  it,  and  after  conference  with  the  agent 
of  the  owner,  purchased  it  on  the  terms  specified,  it  was  error 
to  dismiss  the  plaintiff  at  the  close  of  his  evidence.  Schubert  v. 
Kaplan,  109  N.  Y.  S.  729. 

Bee.  1078a.    To  work  a  reversal  errors  in  the  trial  must  have 
been  prejudicial. 

Error  in  the  trial  to  work  a  reversal  on  review  must  have 
been  prejudicial  to  the  complaining  party.  Rothschild  v.  Bur- 
ritt,  47  Minn.  28,  49  N.  W.  393;  Wray  v.  Carpenter,  16  Colo. 
271,  27  P.  783. 


884  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

Sec.  1078b.    Error  to  exclude  contract  of  sale. 

In  an  action  by  a  broker  for  commissions  for  a  sale  of  def end- 
ant 's  lands,  where  the  evidence  shows  that  defendant  when  noti- 
fied of  the  sale  acquiesced  in  the  terms  thereof,  it  was  error  to 
exclude  the  contract  authorizing  the  plaintiff  to  make  the  sale, 
on  the  ground  that  the  sale  was  not  according  to  the  contract. 
Czarnowski  v.  Holland,  5  Ariz.  119,  78  P.  890. 

Sec.  1078c.    No  such  failure  of  proof  shown  as  to  justify  the 
taking  of  the  case  from  the  jury. 

A  complaint  alleged  an  authorization  to  plaintiff  to  offer 
certain  property  for  sale,  and  to  be  paid  ten  per  cent,  on  any 
amounts  above  $60,000  realized;  that  within  the  time  stipulated 
in  the  contract  plaintiff  procured  an  offer  of  $80,000,  and  ad- 
vised defendant  that  more  might  be  procured;  that  defendant 
sold  the  property  for  more  than  said  offer,  whereby  plaintiff 
became  entitled,  etc.,  under  the  written  contract  admitted  by 
defendant;  the  broker  was  entitled  to  his  commissions  if  a  pur- 
chaser was  procured  willing  to  pay  a  sum  in  excess  of  $60,000. 
It  was  also  admitted  that  plaintiff  notified  defendant  of  the  offer 
of  $80,000,  that  he  intimated  that  more  could  be  secured,  and 
that  a  sale  for  a  larger  amount  was  subsequently  made  by  de- 
fendant to  such  purchaser ;  plaintiff,  in  addition  to  referring  to 
the  written  contract,  testified  that  when  the  arrangement  was 
made  the  services  had  been  rendered,  nothing  more  being  con- 
templated; that  the  offer  was  communicated  to  and  defendant 
advised  what  the  purchasers  were  willing  to  pay ;  that  the  money 
demanded  was  for  information  given.  Held,  not  such  a  failure 
of  proof  of  the  cause  of  action  set  out  in  the  complaint  as  to 
justify  the  taking  of  the  case  from  the  jury.  Geoghegan  v. 
Chatterton,  99  N.  Y.  S.  702,  113  App.  Div.  835. 

Sec.  1078d.    Evidence  on  question  of  abandonment  improperly 
excluded. 

In  an  action  for  commissions  by  real  estate  brokers,  where 
the  defense  was  that  defendants  had  cancelled  plaintiffs '  employ- 
ment before  the  sale,  testimony  whether  a  proposition  received 


PLEADINGS,  PBAOTICE,  ETC.  885 

after  tEe  alleged  abandonment  was  more  or  less  favorable  than 
the  original  one,  was  competent  on  the  question  of  abandonment, 
and  was  improperly  excluded.  Young  v.  Hubbard,  154  Mich 
218,  117  N.  W.  632,  15  D.  L.  N.  725. 

Sec.  1078e.    Error  to  charge  that  broker  would  not  be  entitled 
to  recover  unless  broker  procured  increased  price. 

In  an  action  by  a  broker  to  recover  his  commissions,  where 
the  broker  testifies  that  the  defendant,  the  owner,  after  authorizi- 
ing  him  to  sell  the  property  at  a  certain  price,  in  a  later  inter- 
view fixed  a  greater  net  price,  it  is  error  for  the  court  to  charge 
the  jury  that  according  to  defendant's  contention  the  plaintiff 
would  not  be  entitled  to  recover  unless  he  had  found  a  purchaser 
willing  to  pay  such  larger  net  price.  Sechrist  v.  Atkinson,  31 
App.  D.  C.  1.  See  Sec.  24. 

Sec.  1078f.    Admission  of  evidence  not  justifying  reversal. 

Admission  in  evidence,  in  an  action  to  recover  commission  on 
a  sale  of  real  estate,  of  a  listing  card  made  by  plaintiff  as  to  de- 
fendant's property,  giving  information  as  to  its  value;  held,  not 
reversible  error.  Eappes  v.  Bacon,  209  111.  App.  290. 

Sec.  1078g.    Striking  of  evidence  held  erroneous. 

In  a  broker's  action  for  commission  on  sale  of  farm,  striking 
of  defendant  owner's  testimony  denying  plaintiff  broker's  allega- 
tion that  he  had  an  exclusive  agency  and  contradicting  the  bro- 
ker's testimony  in  support  of  the  plea;  held  erroneous.  Thomas 
v.  Wychoff,  174  N.  W.  26,  —  Iowa  Sup.  — . 

Sec.  1078h.    Amendment  to  original  complaint  not  error. 

Where  the  original  complaint  in  a  broker's  action  for  commis- 
sion in  negotiating  an  exchange  of  real  estate  was  on  a  quantum 
meruit,  there  was  no  error  in  permitting  plaintiff  to  amend  his 
complaint  so  as  to  allege  a  concurrent  contract  to  pay.  James  E. 
Carlson,  Inc.  v.  Bailer,  174  N.  W.  824,  —  Minn.  Sup.  — . 


886  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  10781.    Limited  admission  of  testimony  upheld. 

Plaintiff's  allegation  of  general  partnership,  being  brought  in- 
dividually to  include  a  special  partnership  of  agreement  between 
plaintiff  and  defendant  to  divide  commissions  from  sale  of  cer- 
tain land,  there  was  no  error  in  admitting  plaintiff's  testimony 
that  agreement  to  divide  commission  extended  only  to  the  sale  of 
that  land.  Treadwell  v.  Key,  215  S.  W.  728,  —  Ark.  Sup.  — . 

Sec.  1078 j.    Not  error  to  refuse  testimony  where  affirmative 
defense  not  pleaded. 

In  a  broker's  action  for  commission,  where  defendants  failed 
to  plead  as  a  defense  that  the  condition  subsequently  embraced  in 
the  sale  contract  had  not  been  performed,  it  was  not  error  to  re- 
fuse defendants'  offered  testimony  thereon.  Associated  Inv.  Co. 
v.  Coyias,  185  P.  778,  —  Utah  Sup.  — . 

Sec.  1078k.    Error  not  to  submit  issue  made  by  the  evidence 
as  to  whether  owner  prevented  sale. 

Where  an  instruction  placed  the  burden  on  plaintiffs,  brokers, 
to  prove  a  contract  for  a  commission,  if  purchasers  bought  the 
land,  regardless  of  whether  plaintiffs  made  the  sale,  it  was  error 
not  to  submit  the  issue  made  by  the  evidence,  as  to  whether  de- 
fendant owner  prevented  plaintiffs  making  such  sale.  Hall  v. 
Calaway,  226  S.  W.  179,  —  Ark.  Sup.  — . 

Sec.  1079.     When  judicial  construction  will  not  be  placed 
solely  on  correspondence. 

The  defendant  had  no  right  to  demand  that  correspondence  be 
given  a  judicial  construction  alone,  where  some  of  the  letters  and 
the  defendant's  endorsements  thereon  referred  to  telephonic  con- 
versations between  the  parties  in  relation  to  the  subject-matter  in 
issue.  Beach  v.  Travelers'  Insurance  Co.,  73  Conn.  118,  46  A. 
867.  See  Sec.  648. 

Sec.  1080.    The  question  of  what  constitutes  a  reasonable  time. 

What  constitutes  a  reasonable  time  is  a  question  for  the  court. 
Id.;  Cocquyt  v.  Shower,  189  P.  606,  —  Colo.  Sup.  — .  In  other 


PLEADINGS,  PRACTICE,  ETC.  887 

jurisdictions  it  is  considered  a  question  of  fact,  to  be  determined 
by  the  jury,  on  evidence  of  the  steps  necessary  to  be  taken.  Dent 
v.  Powell,  80  Iowa,  456,  45  N.  W.  772 ;  Hurst  v.  Williams,  31  Ky. 
L.  R.  658,  102  S.  W.  1176;  Oliver  v.  Katz,  131  Wis.  409,  111 
N.  W.  509;  Hull  v.  Olson,  114  P.  638,  58  Or.  464.  See  Sec.  611, 
612. 

Sec.    1081.    Construction  of  commission  contract. 

Where  a  contract  for  commissions  on  a  sale  of  real  estate 
provided  for  its  payment  as  soon  as  the  purchaser  had  made 
payment  of  the  balance  due  after  the  payment  made  at  the  time 
the  contract  was  executed,  no  commission  was  payable  until 
after  the  land  was  paid  for,  and  in  construing  the  commission 
contract,  the  contract  as  to  the  sale  of  the  land,  so  far  as  it 
related  to  the  purchase  price,  should  be  construed  with  it 
Robertson  v.  Vasey,  125  Iowa,  526,  101  N.  W.  271. 

The  sale  by  an  agent  of  an  entire  tract  of  428  acres  is  not  a 
compliance  with  the  contract  with  the  landowner  authorizing  the 
agent  to  sell  "in  tracts  of  one  acre  and  up/'  Montgomery  v. 
Slater,  126  P.  1085,  87  Kan.  848,  judg.  aff.  on  re.,  131  P.  153,  89 
Kan.  442. 

Under  agreement  between  defendant  and  broker  commissions 
payable  out  of  sum  received  by  defendant  from  purchasers;  held, 
to  become  due  and  payable  at  once  upon  cancellation  of  contract 
with  purchasers.  Starbird  v.  Davis,  150  P.  244,  27  Colo.  App. 
467. 

Under  a  contract  with  real  estate  brokers  for  the  payment  of 
a  commission  "on  the  day  of  passing  title  or  July  15th,"  the  bro- 
kers are  entitled  to  commissions  only  on  the  contingency  of  pass- 
ing title  to  a  purchaser.  Leschziner  v.  Bauman,  85  A.  205,  83 
1ST.  J.  Law,  743. 

Sec.    1082.    Construction  of  employment  to  negotiate  a  lease. 

In  an  action  for  commissions  for  the  sale  of  a  lease,  in  a 
petition  which  alleged  that  defendant  authorized  plaintiff  to 
negotiate  a  sale,  the  word  "negotiate"  should  be  construed  to 
mean  conversations  in  arranging  the  terms  of  a  contract.  North- 
rupp  v.  Diggs,  128  Mo.  App.  217,  106  S.  W.  1123. 


888  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  1083.  Contract  construed  to  be  that  of  agency  and  not 
an  option. 

A  writing  in  express  terms  empowering  and  authorizing  real 
estate  brokers  to  sell  land  for  $1,000,  or  as  much  less  as  the 
owner  might  take,  binding  the  brokers  to  accept  as  remuneration 
any  sum  they  might  obtain  in  excess  of  the  sum  stipulated  that 
the  owner  should  receive,  was  a  contract  of  agency  and  not  an 
option  to  the  brokers  to  purchase  the  land.  Tate  v.  Aitken,  5 
Cal.  App.  505,  90  P.  836.  See  also  Sec.  82. 

Sec.  1084.  Exclusive  contract  construed  not  to  entitle  broker 
to  commissions  on  owner  making  contract  with  second 
broker. 

Where  one  has  charge  of  real  estate  under  an  exclusive  agency 
for  its  sale,  and  as  a  part  of  his  compensation  is  to  receive  a 
percentage  of  the  price  for  which  it  is  sold,  no  matter  to  whom, 
a  contract  by  the  owner  granting  to  a  third  person  the  right 
to  sell  and  retain  all  the  proceeds  over  a  certain  price,  is  not 
a  sale  in  such  a  sense  as  to  entitle  the  original  agent  to  the 
specified  percentage.  Kirschner  v.  Brown  (Kan.  Sup.  '08), 
96  P.  848. 

Sec.  1085.  The  word  "taxes"  construed  not  to  include  street 
assessments. 

Where  a  contract  with  brokers  for  the  sale  of  land  required 
defendant  to  furnish  a  certificate  of  title  showing  the  property 
clear  of  any  incumbrances,  except  "*  *  *  taxes  assessed  but 
not  due  and  payable,"  defendant  was  not  bound  to  clear  the 
property  from  all  street  assessments,  the  word  "taxes"  being 
ordinarily  used  to  refer  only  to  taxes  assessed  for  state,  county, 
or  city  purposes,  and  not  to  describe  street  assessments  for  public 
improvements.  Alderson  v.  Houston,  96  P.  884,  154  Cal.  1. 


Sec.  1086.    The  word  "divide"  construed  to  mean  into  equal 
parts. 

A  complaint  in  an  action  by  a  broker  for  commissions,  which 
alleged  that  plaintiff  was  employed  to  assist  in  making  a  sale, 


PLEADINGS,  PRACTICE,  ETC.  889 

that  defendant  promised  to  pay  plaintiff  for  his  services  a  half 
of  the  commissions  received  on  a  sale  being  made,  that  a  sale 
was  made  through  the  services  of  plaintiff,  and  that  defendant 
received  a  specified  sum  for  commissions,  is  supported  by  evi- 
dence that  defendant  agreed  to  "divide"  the  commissions  with 
plaintiff,  the  word  "divide"  in  common  parlance,  meaning 
when  used  by  two  contracting  parties,  severance  or  partition, 
into  equal  parts.  Graves  v.  White,  43  Colo.  131,  95  P.  347 


Sec.  1087.    Instrument  held  to  be  a  contract  of  sale  and  not  in 
itself  a  sale. 

Where  S.  &  N.  make  a  contract  about  the  conveyance  of  a 
farm  by  S.  to  N.  who  pays  a  certain  sum  in  cash,  and  agrees  to 
pay  a'  further  sum  at  a  future  time,  and  execute  a  mortgage  for 
the  balance  of  the  purchase  price,  at  which  time  S.  agrees  to 
make  a  deed  to  the  farm,  giving  possession  of  the  same;  and 
at  the  same  time  it  is  further  agreed  that  if  N.  fails  to  pay  the 
further  sum  of  money  and  to  execute  the  mortgage,  then  the 
money  paid  shall  be  forfeited  to  S;  Held,  that  such  an  instru- 
ment is  a  contract  of  sale,  and  not  a  sale  itself.  Stewart  v.  Fow- 
ler, 37  Kan.  677,  15  P.  918. 

Sec.  1088.    Contract  construed  as  that  of  agency  and  not  em- 
ployment as  mere  middlemen. 

A  contract  placing  property  in  the  hands  of  real  estate  agents 
for  sale  or  exchange,  the  owner  reserving  an  option  as  to  whether 
it  should  be  sold  or  exchanged,  expressly  agreeing  to  give  the 
agents  all  the  assistance  in  his  power  in  the  transaction,  confers 
upon  the  agents  authority  to  negotiate,  and  does  not  constitute 
them  mere  middlemen  to  bring  the  parties  together.  Scribner 
v.  Collar,  40  Mich.  275. 

Sec.  1089.    Broker's  contract  construed  as  absolute  promise  to 
pay  price  of  land  if  not  sold  within  a  year. 

After  agreeing  to  sell  land  belonging  to  plaintiff  for  $12,000 
within  one  year,  defendant  agreed  to  account  for  the  proceeds 
of  sale  of  said  premises,  whenever  prior  to  the  expiration  of 
said  twelve  months,  he  should  effect  a  sale  of  said  premises. 


890  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Held,  that  this  was  not  an  agreement  to  pay  only  on  condition 
that  a  sale  was  made,  but  was  an  absolute  promise  to  pay  within 
a  year,  and  to  pay 'before  the  end  of  a  year  if  a  sale  should  be 
sooner  affected.  Dunn  v.  Mackey,  80  Cal.  104. 

Sec.  1090.  Remark  of  principal  held  not  to  destroy  broker's 
ability  to  sell  at  price  stipulated. 

Plaintiff's  assignor  was  authorized  to  sell  defendants'  manu- 
factory for  $125,000.  He  found  parties  willing  to  take  a  lease 
of  it  for  six  months,  with  privilege  to  purchase  it  for  the  price 
stated.  Defendants  stated  to  one  M.  about  the  same  time  that 
they  would  be  glad  if  a  purchaser  could  be  found  at  $100,000, 
but  it  did  not  appear  that  this  remark  ever  reached  the  proposed 
lessees,  or  any  intending  purchaser.  There  was  no  evidence  that 
the  property  had  a  market  value  of  $125,000,  except  the  above 
proposal  of  lease.  Held,  that  defendants'  statement  did  not  de- 
stroy the  market  at  $125,000,  so  as  to  entitle  plaintiff's  assignor 
tD  the  commissions  he  would  have  made  in  case  of  sale.  Barkley 
v.  Olcatt,  5  N.  Y.  S.  525. 

gee.  1091.  Broker  under  a  general  employment  held  not  en- 
titled to  extra  compensation  for  drawing  lease. 

In  an  action  for  a  broker's  comission  for  drawing  leases  of 
his  principals'  property,  it  was  shown  that  he  had  a  power  of 
attorney  to  collect  rents  and  execute  leases  to  their  property  for 
a  compensation  of  five  per  cent.,  and  he  admitted  that  he  had 
charge  of  the  property  concerned  in  the  action  on  the  same 
terms.  It  was  shown  that  he  collected  the  rents  and  retained 
a  commission  of  five  per  cent.  Held,  that  a  verdict  for  defend- 
ants was  properly  directed.  Fish  v.  Jlodsdon,  16  N.  Y.  S.  92. 

Sec.  1092.  Contract  held  not  invalid  because  of  lack  of  con- 
sideration, absence  of  mutuality  or  want  of  definite  term 
of  existence. 

A  contract  between  a  land  company  and  real  estate  agents, 
whereby  the  latter  agreed  to  sell  the  town  lots  of  the  company 
at  a  certain  town,  for  such  prices  as  might  be  deemed  just,  and 
the  company  agreed  to  pay  the  agents  ten  per  cent,  on  all  sales, 
and  to  set  apart  certain  lots  for  advertising  purposes,  etc.,  was 


PLEADINGS,  PRACTICE,  ETC.  891 

not  invalid  for  lack  of  consideration,  absence  of  mutuality,  or 
want  of  definite  term  of  existence.  Albany  Land  Co.  v.  RicJcel, 
162  Ind.  222,  70  N.  E.  158 ;  Boyd  v.  Watson,  101  Iowa,  214,  70 
N.  W.  120;  Norman  v.  Hopper,  38  Wash.  415,  80  P.  551. 

Sec.  1093.  Statute  restricting  broker's  fee  for  securing  loan 
applicable,  when  suit  brought  to  enforce  after  change 
made. 

1  Rev.  St.,  p.  709,  restricting  brokers'  fees  for  negotiating 
loans  to  one-half  of  one  per  cent,  on  the  amount  loaned,  applies 
to  a  contract  for  a  loan  procured  while  such  statute  was  in  force, 
although  not  sought  to  be  enforced  until  after  the  statute  was 
changed.  Anderson  v.  Divyer,  63  N.  Y.  S.  201,  30  Misc.  793. 

Sec.  1094.    Broker  entitled  to  ten  per  cent,  on  excess  above 

$60,000. 

A  contract  stipulated  that  the  broker  was  "authorized  to 
offer"  certain  property  for  sale,  and  in  lieu  of  the  usual  broker- 
age ' '  you  are  offered  ten  per  cent,  on  the  excess  above  $60,000. ' ' 
Held,  that  if  the  broker  procured  a  purchaser  willing  to  pay  a 
sum  in  excess  of  $60,000,  he  was  entitled  to  ten  per  cent,  on 
the  amount  accepted  by  the  owners  in  excess  of  $60,000.  Geoghe- 
gan  v.  Chatterton,  99  N.  Y.  S.  702,  113  App.  Div.  835. 

Sec.  1095.  Broker  held  entitled  to  remaining  commissions 
from  proceeds  of  sale  of  corporate  stock. 

In  an  action  by  a  broker  to  recover  commissions  on  a  sale 
of  realty,  the  evidence  showed  that  defendant  agreed  to  pay 
$20,000  commissions  on  the  sale  of  certain  coal  lands,  and  that 
plaintiff  secured  a  purchaser,  and  that  the  land  was  sold  and 
the  consideration  received  in  corporate  stock.  Defendant  agreed 
that  on  the  sale  of  the  stock  he  would  pay  one-fourth  of  the 
proceeds  of  every  sale  made  by  him  until  the  $20,000  was  paid ; 
after  several  sales  defendant  sold  for  a  reduced  sum  the  balance 
of  the  stock  which  he  had  received,  having  paid  plaintiff  his  pro- 
portion of  previous  sales.  Held,  that  plaintiff  was  entitled  to 
recover  out  of  the  sum  paid  for  the  balance  whatever  was  due 
him  of  the  $20,000.  Ryan  v.  Starr,  214  Pa.  St.  318,  63  A.  704. 


892  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

Sec.  1096.    Broker  refusing  to  carry  out  contract  of  substitu- 
tion denied  recovery  of  commissions. 

Where  a  real  estate  broker  agreed  with  a  prospective  tenant, 
and  executed  a  receipt  in  full  for  his  commissions,  in  order  to 
enable  the  tenant  to  procure  a  lease,  and  to  accept  from  the 
tenant  stock  and  bonds  of  a  corporation  which  the  tenant  was 
to  organize  as  payment  for  his  commissions,  but  refused  to  carry 
out  such  agreement,  he  could  not,  irrespective  of  the  question 
of  novation,  recover  his  commissions  from  the  principal.  Davis 
v.  True,  85  N.  Y.  S.  843,  89  App.  Div.  319. 

Sec.  1097.    Objection  to  question  held  properly  sustained. 

In  an  action  by  a  loan  broker  against  a  client  who  had  refused 
to  take  the  loan  after  a  lender  had  been  secured,  the  defendant 
testified  that  he  told  the  lender's  attorney  that  he  would  not 
complete  the  loan  until  he  had  arranged  to  pay  an  existing  mort- 
gage before  maturity,  and  a  day  or  so  later  he  told  him  that  he 
had  notified  the  mortgagee  that  the  negotiations  pending  for  the 
paying  off  of  his  loan  had  terminated.  He  was  then  asked, ' '  What 
caused  the  making  of  that  statement  ?  What  transpired  between 
you  and  plaintiff  that  led  you  to  make  that  statement  to  the 
mortgagee,  that  the  transaction  had  terminated?"  Defendant 
had  testified  fully  as  to  his  conversation  with  plaintiff.  Held, 
that  the  objection  to  the  question  was  properly  sustained.  Payne 
v.  Williams,  178  N.  Y.  589,  70  N.  E.  1104. 

Sec.  1098.  Evidence  held  not  to  show  that  broker  so  acted 
in  the  interest  of  tenant  as  to  defeat  right  to  commissions. 
Defendant  entrusted  to  plaintiffs  the  leasing  of  certain  prop- 
erty, offering  to  erect  a  building  thereon  for  the  tenant  under  a 
long  lease.  Other  parties  had  come  to  plaintiffs  to  find  them 
a  building  suitable  for  their  purpose.  Plaintiffs  brought  these 
parties  and  defendant  together ;  the  matter  was  discussed  and  an 
arrangement  for  a  twenty  years'  lease  effected,  the  contract  be- 
ing drawn  by  plaintiffs ;  difficulties  occurred  in  the  arrangements, 
owing  to  the  necessity  of  a  fireproof  building,  and  an  increased 
rental  to  which  the  proposed  tenants  objected ;  but  this  difficulty 


PLEADINGS,  PRACTICE,  ETC. 

was  bridged  over  by  the  plaintiffs'  efforts,  who  were  in  tele- 
graphic communication  with  defendant.  Held,  that  the  evidence 
did  not  show  that  plaintiffs  were  acting  to  such  an  extent  in 
the  interest  of  the  tenants,  as  well  as  in  the  interest  of  the  de- 
defendant,  as  to  preclude  the  recovery  of  commissions.  Rutledge 
v.  Neely,  99  Mo.  App.  384,  73  S.  W.  359. 

Sec.  1099.    Special  finding  of  jury  that  plaintiff  was  procuring 
cause  of  sale  construed  not  to  entitle  to  commissions. 

In  an  action  for  a  broker's  commissions,  the  jury  specially 
found  that  plaintiff  was  the  procuring  cause  of  the  sale  by  the 
owner  to  the  purchaser ;  but  also  found  that  plaintiff,  before  the 
sale,  had  released  defendant  from  the  obligation  to  pay  any 
commissions  in  case  he  sold  the  farm  himself,  and  that  defend- 
ant relied  on  such  releases  in  selling  the  farm.  Held,  that  a 
finding  that  plaintiff  was  the  procuring  cause  of  the  sale  only 
meant  that  plaintiff  drew  the  purchaser's  attention  to  the  farm, 
and  did  not  constitute  a  finding  that  the  sale  was  in  fact  made 
by  plaintiff  and  not  by  the  owner,  so  as  to  entitle  plaintiff  to 
commissions,  notwithstanding  the  release.  Wisconsin  Farm  Land 
Co.  v.  Bullard,  119  Wis.  320,  96  N.  W.  833 

Sec.  1100.  Contract  held  not  in  violation  of  U.  S.  land  laws. 
A  contract  whereby  a  party  holding  a  homestead  entry  of  gov- 
ernment land,  on  which  are  certain  improvements,  agrees  with 
another  party  to  pay  him  a  certain  per  cent,  commission  if  he 
will  find  a  purchaser  for  such  land,  and  such  party  does  find 
such  purchaser,  who  pays  a  certain  stipulated  sum  to  the  home- 
stead entryman,  who  releases  his  homestead  entry,  and  the  other 
party  files  thereon,  is  not  void  as  in  violation  of  the  land  laws 
of  the  United  States.  Hoijle  v.  Johnson,  18  Okla.  330,  89  P.  1119. 

Sec.  1101.    Extension  of  time  should  be  pleaded  in  order  to 
justify  evidence!  thereof. 

"Where  time  was  of  the  essence  of  a  broker's  contract  for 
the  sale  of  land,  an  extension  of  time  should  be  pleaded  in 
order  to  justify  evidence  thereof  and  its  submission  to  the  jury. 


894  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

Leuschner  v.   Patrick    (Tex.   Civ.   App.   '07),   103    S.   W.   664; 
Whiteloclc  v.  Beach,  160  S.  W.  815,  174  Mo.  App.  428. 

Sec.  1102.    Contract  construed  to   authorize  sale  at  $1,700 
gross. 

"Where  agents  wrote  the  owner  of  a  lot  submitting  offer  of 
$1,500,  less  commissions,  and  the  owner  replied  that  he  thought 
$1,700  a  fair  price,  and  that  it  would  be  acceptable  to  him,  the 
agents  were  authorized  to  sell  for  $1,700  gross.  Campbell  v. 
Lombardo,  44  S.  362,  153  Ala.  489. 

Sec.  1103.    Contract  limited  to  one-half  the  net  profits  on  lots 
sold. 

Under  a  contract  of  appointment  as  exclusive  agent  for  six 
months  to  sell  and  manage  lots,  agents  to  receive  one-half  the 
net  profits,  the  agents  are  limited  to  one-half  the  net  profits  on 
sales  made  during  the  six  months,  and  are  not  entitled  to  receive 
one-half  the  net  profits  on  sales  thereafter  made.  Title  Ins.  & 
Trust  Co.  v.  Grider,  152  Cal.  746,  94  P.  601. 

Sec.  1104.    Construction  of  contract  where  broker  was  to  re- 
ceive one-half  the  net  profits. 

Under  a  contract  whereby  the  parties  agreed  to  put  in  cement 
sidewalks,  build  stone  pillars,  and  write  all  advertiseemnts,  in 
consideration  of  their  appointmemt  as  exclusive  agents  to  sell 
lands,  "all  of  the  above  to  be  paid  for  by"  such  parties,  they 
to  receive  one-half  the  net  profits,  the  expense  of  putting  in 
cement  walks,  etc.,  must  be  paid  by  such  parties,  and  they  are 
not  entitled  to  have  the  same  paid  out  of  the  proceeds  of  sales. 
Id. 

Sec.  1104a.    What  not  an  interference  with  right  to  one-third 
profits  on  resale  of  land. 

In  action  involving  defendant's  right  to  commission  on  resale 
of  land  purchased  by  plaintiff,  that  the  defendant  notified  purchaser 
before  consummation  of  sale  of  such  right;  held,  not  interference 
which  would  bar  defendant's  right  to  one-third  of  profits  pursuant 


PLEADINGS,  PRACTICE,  ETC.  895 

to  agreement  with  plaintiff.    Alexander  v.  Critcher,  94  S.  E.  335, 
—  Va.  Sup.  — . 

Sec.  1105.    Construction  against  right  of  claimants  to  com- 
missions. 

In  a  controversy  between  rival  claimants  for  commissions  upon 
a  sale  of  real  estate,  where  there  is  no  dispute  that  a  certain 
person  holds  the  title  and  paid  the  purchase  price,  and  nothing 
to  show  that  the  purchase  by  such  person  was  a  mere  pretense 
to  cover  a  sale  to  the  brokers  who  ostensibly  produced  him,  the 
presumption  must  be  that  he  was  a  lona  fide  purchaser,  and  that 
the  only  parties  entitled  to  commissions  are  those  who  produced 
him,  and  the  mere  fact  that  such  parties  may  have  accepted 
commissions  from  him  does  not  increase  the  rights  of  claimants 
who  did  not  produce  him.  Shapiro  v.  Shapiro,  110  N.  Y.  S. 
11,  125  App.  Div.  608. 

Sec.  1106.    Agreement  construed  not  to  be  harsh  or  unrea- 
sonable. 

An  agreement  to  pay  plaintiff,  a  real  estate  broker,  $500  in 
case  a  sale  was  made  to  one  of  his  customers,  in  consideration 
of  plaintiff's  bringing  such  customer  to  inspect  defendant's 
farm,  without  plaintiff  being  required  to  solicit  or  endeavor  to 
induce  the  customer  to  buy,  it  being  plaintiff's  intention  to  show 
the  customers  other  farms  in  the  neighborhood  listed  with  him 
for  sale,  was  not  harsh  or  unreasonable.  Lee  v.  Conrad  (Iowa 
Sup.  '08),  117  N.  W.  1096. 

Sec.  1107.    Contract  construed  to  be  an  agreement  of  agency. 

Plaintiff,  the  owner  of  land,  entered  into  a  contract  with  de- 
fendant and  his  partner,  by  the  terms  of  which  the  defendant 
and  his  partner  were  to  sink  a  well  on  the  land,  install  a  pumping 
plant,  and  develop  water  upon  the  premises,  they  to  pay  all 
the  expenses  and  were  to  subdivide  and  sell  the  premises,  in 
consideration  of  which  they  were  to  have  the  exclusive  handling 
and  sale  thereof,  and  the  net  proceeds  of  the  sale  of  the  land 
and  crops  raised  thereon,  after  first  paying  plaintiff  the  first 
cost  of  the  land,  were  to  be  divided  equally  between  plaintiff 
and  defendant's  firm.  Defendant's  firm  was  given  the  option 


896  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

to  make  such  terms  of  sale  as  they  might  deem  proper,  subject 
to  certain  restrictions,  and  the  contract  provided  that  if  the 
property  should  not  be  subdivided  and  sold  by  defendant's  firm 
at  a  sooner  date,  the  contract  should  remain  in  force  for  two 
years,  and  for  such  further  time  as  might  be  agreed  upon  at 
the  end  of  that  period.  Held,  that  the  contract  was  nothing 
more  than  an  agreement  of  agency  whereby  defendant's  firm, 
in  consideration  of  money  and  services  to  be  given  by  them, 
were  given  the  exclusive  right  to  sell  the  land  for  a  compensation 
to  be  measured  by  the  price  realized.  They  had  no  interest,  legal 
or  equitable,  in  the  land;  at  least,  after  the  expiration  of  the 
time  limited  by  the  parties.  Hicks  v.  Post  (154  Cal.  22),  96 
P.  878. 

A  contract  to  pay  a  commission  for  a  broker's  effecting  a  con- 
tract was  based  upon  sufficient  consideration  where  the  broker 
agreed  to  act  as  agent  in  "negotiating  an  exchange"  of  property 
and  securing  a  binding  agreement  of  a  third  person  to  make  an 
exchange.  Lundeen  v.  Ottis,  128  P.  335,  164  Cal.  183. 

In  an  action  by  a  broker  for  a  commission,  held  not  to  show 
that  plaintiffs  only  authority  was  to  secure  a  purchaser  at  a 
stated  amount,  but  that  the  agency  was  a  general  one,  and  plain- 
tiff was  entitled  to  his  commission,  irrespective  of  the  price  actu- 
ally obtained  and  accepted  by  defendant.  Prindle  v.  Allen,  129 
N.  W.  695,  164  Mich.  553. 

Sec.  1108.    Contract  not  being  to  sell  on  credit  enforceable 

against  principal. 

A  contract  of  real  estate  brokers  on  their  principal's  part  to 
sell  property  for  $35,500,  payable  $10,000  in  cash,  and  balance 
to  be  arranged  to  the  satisfaction  of  the  owners,  is  enforceable 
against  the  principal,  not  being  an  agreement  to  sell  on  credit, 
which  the  brokers  were  not  authorized  to  make.  Kemper  v.  Gans 
(87  Ark.  221),  111  S.  W.  1123 ;  rehearing  denied,  112  S.  W.  1087. 

Sec.  1109.    Contract  of  agent  to  sell  land  not  objectionable, 

though  not  signed  by  both  parties. 

A  contract  for  the  sale  of  lands,  made  by  the  owner  to  a 
real  estate  agent,  must  be  construed  as  like  contracts  between 


PLEADINGS,  PRACTICE,  ETC.  897 

other  parties,  and  that  it  provides  for  deducting  from  the  agreed 
purchase  price  a  sum  designated  as  "commission"  to  be  allowed 
by  the  vendor,  does  not  render  it  objectionable  under  the  statute 
making  void  all  contracts  between  the  owner  of  land  and  the 
agent  employed  to  sell  the  same,  not  reduced  to  writing  and 
subscribed  by  both  parties.  Waters  v.  Phelps  (81  Neb.  674), 
116  N.  W.  783. 

Sec.  1110.    Sale  of  land  by  owner  entitled  brokers  to  compen- 
sation, no  previous  notice  of  revocation  having  been  given. 

Defendant,  after  authorizing  plaintiff  and  other  brokers  to  , 
sell  land,  made  a  contract  with  a  purchaser  to  convey,  in  which 
it  was  specified,  with  plaintiff's  consent,  that  the  contract  should 
be  void  by  the  other  brokers  claiming  commissions,  which  they 
did.  The  contract  as  written  was  marked  "void,"  but  at  the 
same  time  defendant  and  the  purchaser  executed  another  writing 
identical  in  terms  with  the  first  agreement,  except  that  the 
provision  that  it  should  be  void  on  the  other  brokers  claiming 
commissions  was  omitted,  the  deposit  made  by  the  purchaser 
on  execution  of  the  first  contract  being  retained.  Held,  That, 
though  defendant  could  have  annulled  the  contract  when  the 
other  brokers  claimed  commissions,  and  thus  have  escaped  lia- 
bility, he  did  not  do  so,  and  that  plaintiff  was  entitled  to  his 
commissions,  the  mere  transcribing  of  the  agreement  not  amount- 
ing to  a  new  contract.  Field  v.  Walford,  131  Mo.  App.  391,  111 
S.  W.  523. 

Sec.  1111.    Contract  for  the  benefit  of  a  third  person  may,  un- 
der a  statute  providing  therefor,  be  enforced  by  him. 

Where  an  owner  contracted  to  convey  to  any  purchaser  se- 
cured by  a  broker  employed  to  procure  a  purchaser,  the  contract 
was  for  the  benefit  of  a  purchaser  procured  by  the  broker  within 
the  provisions  of  the  statute  providing  therefor,  that  a  contract 
made  for  the  benefit  of  a  third  person  may  be  enforced  by  him. 
Bacon  v.  Davis  (Cal.  App.  '08),  98  P.  71. 


898  AMEEICAN  LAW  BEAL  ESTATE  AGENCY. 

Sec.  1112.    Construction  of  the  word  "sold"  as  used  in  the 
contract. 

In  the  absence  of  a  contrary  showing,  land  is  sold  within  a 
parol  contract  authorizing  a  broker  to  sell  land  for  another,  in 
consideration  of  a  stipulated  commission,  when  the  broker  pro- 
duces a  purchaser  willing  and  able  to  comply  with  the  terms  of 
the  sale  and  an  agreement  is  entered  into  between  the  purchaser 
and  the  vendor  which  terminates  in  an  actual  transfer  of  the 
title,  or  when  the  agent  has  performed  the  services  required  of 
him  and  the  vendor  and  purchaser  enter  into  an  enforceable 
contract;  the  word  "sold"  not  necessarily  meaning  that  a  con- 
veyance must  be  made,  or  that  the  title  must  pass.  Sanderson 
v.  Wellsford  (Tex.  Civ.  App.  '09), 116  S.  W.  382. 

Sec.  1113.    Distinction  between  the  rules  of  law  applicable 
to  a  consummated  and  an  unconsummated  contract  of  sale. 

>v  nere  the  agreement  for  the  sale  or  exchange  of  real  property 
has  been  consummated  by  an  actual  execution  of  a  written  con- 
tract therefor,  in  the  absence  of  a  stipulation  to  the  contrary, 
the  broker's  commissions  are  earned  when  the  contract  is  signed 
by  the  client,  and  a  defect  in  the  title  becomes  unimportant  and 
constitutes  no  defense  to  the  payment  of  commissions ;  but  where 
it  is  sought  to  recover  commissions  for  services  rendered  in 
attempting  to  effect  a  proposed  exchange  of  real  property, 
which  was  not  carried  out,  no  written  contract  having  been 
signed  between  the  parties  to  the  exchange,  it  must  be  shown 
that  the  customer  produced  was  the  owner  of  the  property  offered 
for  exchange,  as  well  as  that  after  the  terms  of  the  exchange 
had  been  agreed  upon  the  client  refused  to  carry  them  out. 
Mutchnick  v.  Davis,  114  N.  Y.  S.  997. 

Defendant  having  denied  that  he  ever  agreed  to  exchange  the 
property,  the  rule  that  objections  to  title  and  to  completing  a 
contract  for  the  sale  or  exchange  of  real  property  not  specified 
during  the  negotiations  are  deemed  to  have  been  waived  does 
not  apply.  Id. 


PLEADINGS,  PRACTICE,  ETC.  899 

Sec.  1114.    Construction  of  contract  between  brokers  for  com- 
missions. 

Plaintiffs  agreed  with  defendant  to  assist  him  in  procuring 
for  sale  on  commission  lands  in  H.  County,  and  in  making  sales 
for  defendant  plaintiffs  were  to  receive  one  dollar  an  acre  on 
the  land  previously  listed  by  defendant,  and  one-half  of  the  com- 
missions on  the  sale  of  any  lands  subsequently  listed  by  either  of 
the  parties.  Held,  that,  if  either  of  the  plaintiffs  rendered 
any  assistance  in  listing  land  that  was  subsequently  sold  by 
either  plaintiffs  or  defendant,  plaintiffs  were  entitled  to  com- 
pensation at  the  rate  of  one  dollar  per  acre,  if  the  land  sold  had 
been  previously  listed  by  defendant;  otherwise,  to  one-half  the 
commissions  received  on  the  sale.  Judgment  19  S.  D.  525,  104 
N.  W.  247  reversed  on  error.  Dickinson  v.  Hahn  (S.  D.  Sup.  '09) 
119  N.  W.  1034. 

Sec.  1115.    Construction  of  broker's  contract  for  commissions. 

Defendants,  who  had  platted  a  subdivision,  contracted  with 
plaintiff  for  the  sale  of  the  lots,  giving  him  the  exclusive  right 
of  sale  for  six  months.  Plaintiff  was  to  exercise  reasonable  dili- 
gence to  sell  the  property  within  the  time  specified.  Defendants 
were  to  receive  the  proceeds  until  they  amounted  to  $2,300,  after 
which  the  proceeds  were  to  be  divided  with  plaintiff  as  compen- 
sation for  his  services;  and  if  there  should  be  any  unsold  lots, 
after  defendants  had  received  $2,300,  an  undivided  quarter  in- 
terest was  to  be  conveyed  to  plaintiff.  Held,  that  the  provision 
requiring  the  defendants  to  convey  a  part  of  the  unsold  lots, 
being  only  a  part  of  the  consideration,  was  independent  of  the 
provision  requiring  the  plaintiff  to  exercise  reasonable  diligence 
to  sell  all  the  lots,  and  upon  selling  $2,300  worth  of  lots,  he  was 
entitled  to  the  share  of  the  proceeds  of  subsequent  sales  within 
the  contract  period,  and  also  to  a  conveyance  of  a  one-fourth 
interest  in  the  unsold  lots.  Mitchell  v.  Bushing  (Tex.  Civ.  App. 
'09),  118  S.  W.  582. 

Sec.  1116.    Contract  held  to  be  divisible  and  not  entire. 

A  contract  with  a  broker,  after  providing  the  amount  of  the 
commissions  to  be  paid  on  sales  as  made,  recited  that  the  com- 


900  AMERICAN"  LAW  EEAL  ESTATE  AGENCY. 

missions  were  "to  become  due  on  one-quarter  payment  of  the 
selling  price  of  any  piece  of  land  sold."  Held,  That  the  con- 
tract was  apportionable,  and  not  entire,  contemplating  that  when- 
ever a  payment  was  made  amounting  to  25  per  cent,  or  more  of 
the  selling  price  of  a  tract  of  land  sold,  the  commission  on  the 
sale  became  due  and  payable.  Tilton  v.  James  L.  Gates  Land  Co. 
(Wis.  Sup.  '09),  131  K  W.  331. 

Sec.  1116a.    Contract  held  indivisible. 

The  defendant  purchased  a  tract  of  land  consisting  of  1,167 
acres,  and  agreed  with  plaintiffs,  in  consideration  of  their  ser- 
vices in  procuring  the  purchase,  and  upon  other  considerations, 
that  plaintiffs  should  be  entitled  to  one-fourth  of  the  profits  aris- 
ing from  a  resale  of  the  lands.  831  acres  were  sold,  when  plain- 
tiffs brought  an  action  to  recover  their  share  of  the  profits.  Held, 
that  the  contract  is  entire  and  indivisible,  and  that  plaintiffs  can 
not  maintain  an  action  until  all  the  land  has  been  sold,  and  until 
it  can  be  ascertained  what,  if  any,  profits  there  are  upon  the 
transaction.  Crawford  v.  The  'Surety  Inv.  'Co.,  139  P.  581,  91 
Kan.  748. 

Sec  1117.    Construction  defining  the  word  "list"  in  contracts 
with  brokers  for  the  sale  of  real  estate. 

A  contract  by  a  real  estate  broker  to  "list"  real  estate,  is  not 
satisfied  by  merely  taking  a  description  of  the  real  estate  by 
the  broker,  but  the  most  restricted  construction  of  the  word 
"list"  would  at  least  require  that  some  mention  of  the  real  estate 
should  appear  in  some  of  the  broker's  pamphlets  advertising  the 
property  for  sale,  and,  in  the  absence  of  such  listing,  the  broker 
could  not  recover  commissions  provided  in  case  of  withdrawal 
of  the  land  by  the  owner.  F.  A.  Strout  Co.  v.  Gay  (Me.  Sup. 
'09),  72  A.  881. 

Sec.  1118.    Construction  of  contract  to  pay  commissions  to 

broker. 

In  an  action  for  commissions  on  a  contract  by  which  plaintiff 
was  employed  to  sell  lots  at  private  sale  or  public  auction,  ' '  col- 
lect all  first  moneys,"  and  do  certain  other  things,  the  question 
was  whether  plaintiff  was  entitled  to  commissions  on  defaulting 


PLEADINGS,  PRACTICE,  ETC.  901 

contracts  of  sale,  and  tfie  case  was  submitted  on  an  agreed  state- 
ment reciting  the  amount  of  commissions  accruing  "on  defaulted 
contracts  of  sale  with  purchasers  at  the  auction  sale  *  *  * 
and  no  part  of  which  has  been  or  will  be  received, ' '  and  that  plain- 
tiff claims  right  to  the  commissions,  "regardless  of  subsequent 
defaults  of  contracting  parties."  Held,  that  there  was  nothing 
to  show  that  as  to  sales  in  which  default  was  made,  there  was 
any  "first  money"  to  be  paid,  in  the  absence  of  provision  for 
which  the  auction  sale  was,  under  the  Civil  Code,  Sees.  1793, 
1798,  complete  when  the  auctioneer  announced  the  lots  were 
sold,  and  entered  minutes  of  the  sale  in  his  sale-book,  and 
nothing  to  show  that  if  there  was  provision  for  "first  money," 
it  was  not  collected  by  plaintiff,  the  recited  failure  of  receipts 
being  capable  of  being  referred  solely  to  subsequent  default 
payments,  and  that  no  presumption  as  to  the  existence  of  such 
a  provision,  or  as  to  the  failure  of  plaintiff  to  collect  "first 
money,"  if  there  was  a  provision  therefor,  could  be  made,  so 
as  to  defeat  plaintiff's  right  of  recovery  in  the  absence  thereof; 
the  contract  not  making  it  a  guarantor  of  payments  of  the 
purchase  price  on  sales  made  by  it.  Benedict  v.  Wilson  (Cal. 
App.  '09),  103  P.  350.  Compare  458. 

Sec.  1119.    Construction  of  contract. 

F.  &  J.  were  agents  for  H.  for  the  sale  of  real  estate.  H. 
had  sold  certain  lands  to  G.  F.  acting  as  agent  for  G.'  sold  his 
lots  to  plaintiff,  who  paid  down  $200.  The  contract  provided 
that  it  was  made  subject  to  the  owner's  acceptance.  An  in- 
cumbrance  upon  the  title  was  discovered,  and  a  demand  for  its 
removal  was  refused.  The  contract  was  then  presented  to  G. 
for  approval,  and  upon  his  refusal  to  approve,  a  demand  was 
made  for  the  return  of  the  down  payment,  which  was  also 
refused.  Plaintiff  alleged  that  H.  was  the  owner  of  the  lot, 
and  that  F.  in  making  the  sale  and  receiving  the  money  acted 
for  H.  Held,  That  the  fact  that  F.  was  the  agent  of  H.  for 
the  sale  of  the  lots,  is  not  evidence  that  he  was  acting  other  than 
as  agent  for  G.  in  negotiating  the  sale  to  plaintiff,  since  F.  had 
no  connection  with  J.,  each  maintaining  separate  relations  with 
H. ;  that  the  payment  to  F.  was  not  a  payment  to  either  H.  or 


902  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

J.,  neither  of  whom  had  any  connection  with  the  sale  to  plaintiff, 
and  there  can  be  no  recovery  except  from  F.  or  his  principal  G. 
Jones  v.  Jones  (Wash.  Sup.  '09),  104  P.  786 

Sec.  1120.    Construction  of  contract. 

A  contract  between  a  land  owner  and  a  real  estate  agent  gave 
the  agent  the  exclusive  sale  of  the  land  for  ten  years  at  such 
prices  as  he  might  deem  best,  provided  that  no  tract  should  be 
sold  at  less  than  the  value  named  in  the  schedule  attached.  Out 
of  the  proceeds  of  the  sales  a  stipulated  amount  was  to  be  paid 
to  the  owner,  and  the  balance  equally  divided  between  the 
parties  to  the  contract.  Held,  that  the  agent  had  the  sole  right 
to  fix  the  selling  price,  provided  it  was  not  less  than  the  schedule 
value,  and  that  the  owner  could  not  arbitrarily  refuse  to  approve 
a  sale  for  the  reason  that  the  price  was  not  satisfactory  to  him. 
Young  v.  Metcalf  Land  Co.  (N.  D.  Sup.  '09),  122  N.  W.  1101. 

Sec.  1121.    Construction  of  contract. 

A  contract  for  the  exchange  of  property  made  by  plaintiff 
and  a  purchaser  whom  defendants  had  procured,  provided  that 
to  bind  the  contract  the  purchaser  had  deposited  with  defend- 
ants a  deed  executed  to  plaintiffs,  and  that  plaintiffs  had  paid 
to  defendants  $500;  if  the  purchaser  failed  to  perfect  his  title 
to  the  tract  conveyed  by  the  deed  it  should  pass  in  accordance 
therewith  in  settlement  of  commissions  and  liquidated  damages. 
When  defendants  learned  that  the  purchaser  refused  to  per- 
form they  asked  plaintiffs  if  they  should  send  such  deed  for 
record  where  the  land  was  situated;  but  plaintiffs  replied  that 
they  would  think  about  it,  and  after  defendants  had  held  the  deed 
two  days  without  receiving  instructions,  they  sent  it  to  plaintiffs, 
Who  did  not  have  it  recorded  for  three  months.  The  purchaser, 
in  the  meantime,  had  sold  the  tract  to  one  who  recorded  his 
deed  prior  to  the  recording  of  plaintiffs'  deed.  Held,  That 
plaintiffs'  failure  to  have  the  deed  recorded  in  time  was  through 
their  own  fault,  and  would  not  prevent  defendants  from  recov- 
ering their  commissions  from  plaintiffs  for  procuring  a  pur- 
chaser. Lewis  v.  Mansfield  O.  &  F.  Co.  (Tex.  C.  A.  '09),  121 
S.  W.  585. 


PLEADINGS,  PRACTICE,  ETC.  903 

Sec.  1122.    Construction  of  contract. 

Defendants  agreed  to  procure  a  purchaser  for  plaintiffs'  prop- 
erty, and  procured  one  with  whom  plaintiffs  executed  a  written 
contract,  which  provided  that  to  bind  the  contract  the  purchaser 
had  deposited  with  defendants  a  warranty  deed  to  a  certain  tract, 
part  of  the  property  to  be  exchanged,  and  that  plaintiffs  had 
paid  to  them  $500,  and,  if  the  title  should  prove  defective  upon 
examination,  the  sum  deposited  and  the  deed  should  be  returned 
to  the  respective  parties,  but  if  the  title  proved  good  and  the 
purchaser  failed  to  perform,  his  title  to  the  tract  mentioned 
should  pass  to  the  plaintiffs  according  to  the  deed  deposited  with 
defendants,  in  settlement  of  commissions  and  liquidated  dam- 
ages, and  if  plaintiffs  failed  to  perform,  the  $500  should  be 
forfeited  in  payment  of  commissions  and  liquidated  damages, 
and  if  both  parties  failed  to  perform,  the  purchaser  authorized 
plaintiffs  to  convey  to  defendants  the  tract  above  mentioned  to 
secure  to  them  the  payment  of  the  $500  as  commissions,  and  that 
such  sum  should  be  forfeited  to  defendants  as  commissions  and 
liquidated  damages.  Held,  that,  even  if  defendants  were  bound 
by  the  contract  between  plaintiffs  and  the  purchaser,  it  did  not 
make  their  commissions  depend  upon  the  consummation  of  the 
exchange,  but  upon  the  approval  of  the  titles  of  the  properties ; 
nor  did  it  require  defendants  to  look  to  the  purchaser  for  their 
commissions  if  he  breached  his  contract  with  plaintiffs,  they 
being  bound  to  pay  the  commissions  in  such  case,  as  the  pur- 
chaser's title  to  the  contract  mentioned  passed  to  the  plaintiffs 
in  accordance  with  the  deed  deposited  with  defendants.  Id. 

Broker's  contract  of  employment  construed,  and  held  that 
where  the  prospective  tenant  did  not  prove  complete  compliance 
or  execute  a  lease,  as  provided  therein,  without  the  fault  of  the 
principal,  no  commissions  were  earned.  Leventritt  v.  Gowell,  132 
P.  627,  21  Gal.  App.  597. 

Sec.  1123.    Definition    in    broker's    contract    of    the    word 
"amount." 

Plaintiff,     a    broker,    wrote    defendant    asking  what  he  would 
take  for  His  land,  including  the  stock  and  a  five  per  cent,  com- 


904  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

mission.  Defendant  replied  that  ''$22,500,  your  commission 
$1,112.50;  this  amount  will  buy  the  place."  Held,  that  the 
word  "amount"  referred  to  the  total  of  the  two  sums  mentioned 
by  defendant;  the  word  being  defined  by  Webster  as  "the  sum 
total  of  two  or  more  particular  sums  or  quantities,  as  the  amount 
of  7  and  9  is  16."  Smith  v.  Fears  (Tex.  C.  A.  '09),  122  S.  W.  433. 

Sec.  1124.    Interpretation  of  broker's  authority  to  sell  a  plan- 
tation. 

Plaintiff  sues  defendant  for  commissions  alleged  to  be  due 
him  as  selling  agent  of  a  certain  plantation.  Defendant  resists, 
on  the  ground  that  the  sending  forward  by  himself  of  a  power 
of  attorney  to  plaintiff  was  a  mere  "offer"  of  an  agency,  and 
that  before  it  was  accepted  he  withdrew  his  lands  from  the 
market ;  that  in  the  power  of  attorney  sent  forward  it  was  agreed 
and  understood  that  no  sale  could  or  should  be  made  until  after 
the  prospective  buyer  had  a  conference  with  him  and  had  satis- 
fied him  as  to  his  financial  ability,  and  that  he  himself  should 
be  present  at  the  sale  to  receive  the  cash  and  notes;  that  when 
the  prospective  purchaser  in  this  instance  (with  whom  plaintiff 
as  agent  had  entered  into  a  written  promise  of  sale  of  the  land) , 
presented  himself  at  Natchez,  he  did  not  put  him  (defendant) 
in  default  for  non-execution  of  the  promise :  Held,  the  defenses 
urged  are  not  well  founded.  The  sending  forward  of  the  power 
of  attorney  was  not  the  initial  step  in  the  matter  of  agency.  It 
was  in  fact  accepted  by  plaintiff's  offer  to  take  the  agency.  If 
an  acceptance  was  necessary  it  was  accepted  by  letter  and  by 
action  within  the  time  that  the  situation  of  the  parties  and  the 
nature  of  the  contract  showed  it  was  the  intention  of  the  de- 
fendant to  allow.  The  notice  of  the  withdrawal  of  the  land 
from  market  was  a  recognition  of  the  pre-existing  agency  of 
the  plaintiff.  This  withdrawal  was  after  the  plaintiff  and  the 
prospective  buyer  had  started  to  meet  defendant  at  Natchez,  and 
there  was  no  necessity  for  putting  the  defendant  in  default ;  he 
Jhad  himself  put  an  end  to  the  agency,  and  had  placed  it  out 


PLEADINGS,  PRACTICE,  ETC.  905 

of  his  power  to  carry  out  the  promise  of  sale ;  he  had  withdrawn 
from  the  prospective  purchaser  an  opportunity  to  show  his  good 
faith  and  ability  to  purchase.  Lucket  Land  &  E.  Co.  v.  Brown, 
118  La.  943,  43  S.  628. 

Sec.  1125.    Law  requiring  contract  employing  broker  to  sell 

land  to  be  in  writing  not  retroactive. 

Laws  1905,  p.  110,  c.  58,  requiring  a  contract  for  payment  of 
commissions  to  a  broker  for  the  sale  of  land  to  be  in  writing,  is 
not  retroactive.  Dean  v.  Williams  (Wash.  Sup.  '10),  106  P.  130. 

Sec.  1126.    Construction  of  term   "title  satisfactory  to  pur- 
chaser. ' ' 

Where  a  contract  for  the  sale  of  land  calls  for  a  title  satis- 
factory to  the  purchaser,  he  has  no  arbitrary  right  to  refuse 
the  title  offered,  but  it  means  that  the  vendor  must  furnish  a 
good,  marketable  title.  Id. 

Sec.  1127.    Construction  of  broker's  contract  and  defining  the 

word  "timber." 

Where  a  broker's  contract  employed  him  to  purchase  timber 
options  for  a  percentage  of  the  net  profits  from  the  sale  of  the 
timber,  and  certain  land  was  purchased  in  order  to  obtain  the 
timber  thereon,  the  word  "timber"  in  the  contract  of  employ- 
ment could  not  be  extended  to  include  the  land,  so  as  to  entitle 
the  broker  to  a  percentage  of  the  net  profits  of  the  sale  of  the 
land,  as  well  as  the  timber.  Wilson  v.  James  (Wash.  Sup.  '10), 
106  P.  618. 

Sec.  1128.    When  law  of  place  of  performance  governs  in  in- 
terpretation of  contract. 

The  place  where  a  contract  is  made  governs,  as  a  general 
rule,  the  performance  of  its  terms;  but  when  it  is  the  express 
intention  of  the  parties  that  the  contract  is  to  be  performed  at 
a  different  place,  and  under  a  different  jurisdiction  from  the 
place  where  it  is  made,  the  law  of  the  place  of  performance 
governs.  Benedict  v.  Dakin  (111.  Sup.  '09)  90  N.  E.  712 


AMERICAN  LAW  REAL  ESTATE  AGENCY. 

The  validity  of  form  and  effect  of  a  real  estate  broker's  em- 
ployment contract,  wKicH  is  made  and  to  be  performed  within  tUe 
State  of  Georgia,  are  controlled  by  the  law  of  Georgia.  Hattori 
v.  W.  D.  "Morton  &  'Co.,  79  S.  E.  371,  13  Ga.  App.  469. 

Sec.  1129.    Law  of  place  of  performance  of  contract  governs 
as  to  compensation. 

"Where  a  contract  employing  a  broker  to  procure  a  purchaser 
of  real  estate  in  Louisiana  did  not  fix  the  compensation,  but  it 
appeared  that  the  contract  was  made  in  Louisiana,  without  any- 
thing to  indicate  that  the  parties  contemplated  a  performance 
elsewhere,  and  the  sale  was  consummated  there,  the  law  of  Lou- 
isiana governs  as  to  the  amount  of  the  compensation,  which  must 
be  determined  by  the  customary  commissions  paid  for  like  serv- 
ices in  that  State.  Benedict  v.  Dakin  (111.  Sup.  '09),  90  N. 
E.  712. 

Sec.  1129a.    Contract  of  agency  invalid  in  Nebraska,  invalid 
in  Iowa. 

Oral  confracf  for  commission  for  sale  of  real  estate,  made  in 
"Nebraska,  and  invalid  there,  because  not  in  writing,  as  required 
b~y  Cobleys*  Ann.  Stat.  1911;  field,  invalid  in  Iowa.  "Brown  <£ 
Prammer  v.  Wm.  Perason  Co.,  150  N.  W.  1051,  161  Iowa,  59. 

Sec.  1130.  Definition  of  term  "pecuniarily  able"  in  broker's 

contract  of  employment. 

The  term  "pecuniarily  able,"  used  with  reference  to  the 
financial  condition  of  the  proposed  purchaser  procured  by  an 
agent  of  the  vendor,  does  not  mean  that  such  purchaser  must 
necessarily  have  all  the  money  in  his  pocketbook  or  to  his  credit 
at  the  bank,  but  that  he  is  able  to  command  the  necessary  money 
to  close  the  deal,  on  reasonable  notice  or  within  the  time  limited 
by  the  vendor,  if  a  time  be  limited.  McCabe  v.  Jones  (Wis. 
Sup.  '10),  124  N.  W.  486. 

Sec.  1131.    When  interpretation  of  contract  is  for  the  court, 
when  a  question  of  fact  for  the  jury. 

The  interpretation  of  writings  is  for  the  court,  where  they  are 
are  unambiguous,  or  where  they  are  ambiguous  in  their  terms  and 


PLEADINGS,  PRACTICE,  ETC.  907 

the  ambiguity  can  be  resolved  by  reference  to  other  parts  of  the 
writing  or  uncontroverted  circumstances;  but  where  the  terms 
of  the  writing  are  ambiguous,  and  the  intention  of  the  parties 
cannot  be  ascertained  without  resorting  to  extrinsic  facts  which 
are  controverted  or  unconceded,  intention  is  a  question  of  fact 
for  the  jury.  Big  Four  R.  E.  Co.  v.  Clark  (Mo  App.  '09 ),  123 
S.  W.  95.  See  sec.  926. 

Sec.  1132.    Construction  of  contracts  and  other  judicial  deter- 
minations. 

(1)  An  agreement  by  a  landowner  and  an  agent  authorized 
sale  "if  any  trade  be  made  within  twelve  months  with  parties 
brought  to"  the  owner  by  the  agent  to  protect  the  agent  in  his 
commission,  contemplated  any  trade  resulting  from  negotiations 
by  the  owner  or  any  participated  in  by  the  agent.     Shannon  v. 
Lee,  60  S.  99,  178  Ala.  463. 

(2)  Broker's  contract  of  employment;  held,  not  revoked,  but 
only  construed  together  to  contemplate  that  if  the  land  was  sold 
for  $2,000  or  more,  the  broker  should  receive  a  specified  percent- 
age, and  if  the  price  was  more  than  $1,200,  but  did  not  exceed 
$2,000,  he  should  have  all  in  excess  of  $1,200.    Ingram  v.  Cole- 
man,  160  S.  W.  886,  110  Ark.  632. 

(3)  An  agreement  to  pay  $1,500  as  commission  out  of  the  first 
cash  payment  of  $15,000;  held,  not  to  obligate  the  owner  to  pay 
a  commission   where   only   $1,000   was   paid  by  the   purchaser. 
BecTcwith-Anderson  Land  Co.  v.  Allison,  147  P.  482,  26  Cal.  App. 
473. 

(4)  A  contract  for  a  commission  for  a  sale  of  land;  held,  not 
to  entitle  the  broker  to  the  additional  compensation  provided  to 
procure  assistance  of  another  in  making  the  sale,  where  he  sim- 
ply had  another  agent  to  point  out  the  location  of  the  tile  in  the 
ground.    Harvey  v.  Main,  149  1ST.  W.  236,  167  Iowa,  258. 

(5)  Under  a  contract  making  defendant  agent  to  sell  plaintiff's 
land,  defendant  to  have,  as  compensation,  half  the  selling  price 
received  in  excess  of  $175  per  acre,  to  be  retained  from  the  collec- 
tions made  by  defendant  after  a  certain  amount  was  paid  plain- 
tiff, defendant  is  entitled  to  interest  received  on  deferred  pay- 


908  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

merits  representing  defendant's  share.     Wright  v.  Percivdl-Porter 
Co.,  156  N.  W.  698,  174  Iowa,  522. 

(6)  Where  owners  wrote  a  letter  to  a  real  estate  agent  listing 
land  at  $11.50  per  acre  net  to  owners,  and  the  letter  came  into 
the  hands  of  plaintiff,  another  agent,  who  procured  a  purchaser, 
to  whom  the  owners  sold  the  land  at  $12.50  per  acre,  the  owners 
could  not,  just  before  the  contract  was  signed,  raise  the  net  price 
to  $12.50,  as  against  plaintiff.  Culbertson  v.  Sheridan,  144  P.  268, 
93  Kan.  268. 

(7)  Where  a  broker's  contract  for  the  sale  of  real  estate  pro- 
vides for  a  net  amount  to  the  owner,  his  compensation  is  such 
sum  as  the  purchaser  is  willing  to  pay  in  excess  of  such  net  price. 
Futrell  v.  Reeves,  176  S.  W.  1151,  165  Ky.  282. 

(8)  Where  one  employed  in  selling  land  employs  another,  and 
agrees  to  pay  him  a  fixed  commission,  and  the  one  so  employed 
finds  a  purchaser,  it  is  immaterial  to  the  question  of  the  right  to 
commission  whether  it  absorbs  the  profits  of  his  employer.    Daniel 
v.  Sheridan,  59  S.  24,  131  La.  88. 

(9)  Where  the  owner  of  premises  agreed  to  pay  a  broker,  as  a 
commission  for  procuring  a  tenant,  "all  you  get  above  $2,000  per 
year,"  and  the  broker  leased  the  premises  for  five  years  at  an  an- 
nual rental  of  $2,200,  he  was  entitled  to  the  excess  over  $2,000 
each  year  during  the  life  of  the  lease,  and  not  merely  for  one  year. 
Goldstein  v.  D'Arcy,  87  N.  E.  584,  201  Mass.  312. 

(10)  The  owner  of  real  estate  employed  a  firm  of  brokers  to 
sell  the  same,  agreeing  to  pay  the  brokers  2%%  commission.     A 
prospective   purchaser  procured  by  them   offered  less   than  the 
owner's  price,  and  the  brokers,  in  a  letter  to  the  owner,  agreed  to 
take  a  less  commission  than  2*^%,  and  shortly  after  the  receipt 
of  this  letter  the  purchaser  dropped  all  negotiations,  which  he  re- 
newed about  six  months  later.    After  the  renewal  of  the  negotia- 
tions the  owner  again  asked  the  brokers  what  their  commission, 
would  be,  and  they  agreed  to  take  the  same  amount  as  before. 
Held,  that  as  they  led  the  owner  to  believe  that  their  commission 
would  be  a  less  amount  than  2*4%,  and  he  sold  the  land  under 
that  belief,  so  agreement  was  a  binding  contract  supported  by  a 
valid  consideration.    La  Chappelle  v.  Bicker,  135  S.  W.  957,  154 
Mo.  App.  500. 


PLEADINGS,  PRACTICE,  ETC.  909 

(11)  Letters  constituting  a  broker's  employment  for  the  sale 
of  lands  construed,  under  Kev.  Stat.  1913,  Sec.  7909,  and  held* 
that  the  broker  was  entitled  to  retain  one  dollar  per  acre  as  com- 
mission on  a  sale  of  land  at  $115  per  acre,  though  the  principal's 
first  letter  stipulated  that  the  sale  should  be  for  $115  net  per 
acre.    Pottratz  v.  Piper,  145  N.  W.  265,  95  Neb.  145. 

(12)  If  plaintiff,  in  consideration  of  $120,  agreed  to  procure 
a  loan  for  defendant,  he  is  only  entitled  to  that  compensation 
upon  procuring  the  loan,  and  not  to  the  payment  of  the  disburse- 
ments incurred.     Central  Mtge.  Co.  v.  Partello,  132  N.  Y.  Sup. 
432. 

(13)  A  contract  for  the  employment  of  a  broker  to  sell  real 
estate,  which  stipulates  that  he  shall  receive  for  commission  30% 
of  the  price  as  fixed  by  the  owner,  that  he  shall  receive  such  com- 
mission whether  the  tracts  are  actually  sold  by  him  or  by  any 
other,  and  that,  where  tracts  are  sold  on  the  instalment  plan,  out 
of  each  instalment  the  broker  shall  receive  60%  until  the  total 
amount  of  his  commissions  are  paid,  gives  to  the  broker  a  com- 
mission on  all  sales  of  30%,  where  the  full  price  is  paid,  either 
in  cash  or  by  instalments,  and  on  all  sales  where  at  least  50% 
of  the  price  is  paid,  and  he  is  entitled  to  60%  of  the  amount  of 
instalment  payments  not  equaling  50%  of  the  price,  though  pur- 
chasers making  contracts  with  the  owner  are  unable  to  pay  the 
price.     Van  Varick  v.  Suburban  Inv.  Co.,  135  N".  Y.  Sup.  299, 
76  Misc.  Eep.  573. 

(14)  If   defendant   agreed   to   pay   plaintiff   all   money   over 
$9,000  which  was  received  for  his  land  from  a  purchaser  procured 
by  plaintiff,  and  to  take  suitable  city  property  in  payment  thereof, 
the  actual  value  of  the  city  property  received  in  exchange,  and  not 
the  price  placed  thereon  by  defendant  and  the  purchaser,  should 
be  taken  in  determining  the  amount  of  plaintiff's  compensation. 
Grace  v.  McDowell,  120  P.  413,  60  Or.  577. 

(15)  Where  defendant  entered  into  written  agreement  to  pay, 
plaintiffs  a  commission  of  $750,  to  be  allowed  for  faithfully  enter- 
ing into  a  contract  with  B.  to  act  as  sales  agent  of  a  named  tract 
of  land,  also  as  a  commission  in  helping  to  make  the  deal  with 
B.,  only  one  commission  could  be  collected,  and  plaintiffs  could 
not  recover  the  stipulated  sum,  together  with  a  percentage  com- 


910  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

mission  for  effecting  the  sale.     Thompson  v.  Sargent,  134  P.  7, 
66  Or.  384. 

(16)  Where   a  loan  broker,  holding  an   agreement  with  the 
owner  of  a  building  option  to  furnish  the  necessary  money,  pro- 
cures a  portion  of  the  money  from  a  trust  company,  which  insured 
the  completion  of  the  building  and  the  mortgages  thereon,  and 
the  broker  agrees  that  the  trust  company  shall  retain  the  current 
interest  on  the  mortgages  only;  held,  not  entitled  to  defeat  the 
trust  company's  right  to  retain  the  interest.     Whelan  v.  Land 
Title  &  Trust  Co.,  60  Pa.  Super.  Ct.  9. 

(17)  Where  land  was  listed  with  a  real  estate  broker  to  be 
sold  at  $19  per  acre,  there  being  no  agreement  as  to  his  commis- 
sion, and  after  various  negotiations  the  owner  agreed  to  accept  a 
lesser  price  and  to  pay  the  broker  a  stated  commission,  a  contract 
of  sale  at  a  greater  price  per  acre,  the  method  of  payment  being 
the  same,  was  a  sufficient  compliance  with  the  agreement  to  en- 
title the  broker  to  his  stipulated  commission,  but  no  more.    Luce 
v.  Ash,  132  K  W.  708,  28  S.  D.  109. 

(18)  A  contract  by  which  a  county  listed  land  with  a  broker, 
to  be  sold  at  $4  per  acre  net,  to  the  county,  does  not  necessarily 
mean  that  the  broker  is  to  receive  all  the  excess  above  $4  per  acre, 
nor  that  his  commission  is  to  come  out  of  the  proceeds  of  the 
sale,  but  to  sustain  the  validity  of  the  contract  will  be  construed 
as  meaning  that  the  broker  is  to  obtain  a  purchaser  at  the  best 
price  obtainable,  and  to  receive  thereafter  a  reasonable  compen- 
sation, the  price  in  any  event  to  be  not  less  than  $4  per  acre  to 
the  county,  and  that  the  reasonable  compensation  is  to  be  paid 
by  the  county  in  some  lawful  manner;  that  is,  out  of  current  or 
general  funds.     Sandifer  v.  Foard  County,  134  S.  W.  823,  judg. 
aff.,  151  S.  W.  523,  105  Tex.  420. 

(19)  In  a  action  by  a  broker  employed  to  procure  an  exchange 
of  land  for  a  stock  of  merchandise,  or  all  that  the  owner  of  the 
merchandise  received  in  exchange  therefor,  a  tract  of  land  which 
was  worth  a  specified  sum.    The  owner  of  the  merchandise  testi- 
fied that  he  had  to  have  money  for  an  assumed  indebtedness  on 
the  land  obtained  in  exchange.     Held,  that  as  the  broker's  com- 
mission was  based  upon  a  commission  on  the  amount  realized  by 
the  trade,  the  value  of  the  land,  after  deducting  the  money  paid 
therefor  and  the  indebtedness  assumed  thereon,  must  be  deducted 


PLEADINGS,  PBACTICE,  ETC.  911 

as  the  basis  for  a  computation.    Davidson  v.  Willis,  96  S.  W.  634, 

—  Tex.  Civ.  App.  — . 

(20)  Where  a  contract  employing  plaintiffs  to  sell  defendant's 
property  provided  that  it  must  be  sold  at  a  price  to  net  the 
owners  not  less  than  $125  per  acre,  and  that  a  commission  must 
be  added  to  pay  that  amount,  the  contract  did  not  authorize  the 
brokers  to  retain  as  their  commissions  all  of  the  price  above  $125 
per  acre  obtained,  but  only  entitled  them  to  a  reasonable  compen- 
sation.   Allen  v.  J.  A.  Clapton  Realty  Co.,  135  S.  W.  242,  —  Tex. 
Civ.  App.  — . 

(21)  Where  an  owner  employed  a  broker  to  assist  him  in  ef- 
fecting an  exchange  of  his  land,  and  promises  him  a  commission 
of  a  certain  per  cent.,  and  no  express  contract  is  made  as  to 
which  contract  was  to  be  the  basis  for  fixing  the  commission,  the 
value  of  the  tract  taken  in  exchange  is  the  basis.    Leake  v.  Scaief, 
140  S.  W.  814,  —  Tex.  Civ.  App.  — . 

(22)  Where  an  owner  of  land  agreed  to  pay  a  broker  a  fixed 
percentage  for  procuring  a  purchaser,  his  act  in  selling  the  land 
to  a  prospective  purchaser  at  a  lesser  price  will  not  entitle  the 
broker  to  recover  more  than  the  price  fixed  by  contract.    Martin 
v.  Jeffries,  153  S.  W.  658,  —  Tex.  Civ.  App.  — . 

(23)  A  defendant  employed  to  recover  a  sale  of  lands  of  plain- 
tiff for  one-half  of  each  separate  tract  recovered,  or  one-half  of 
the  proceeds  of  any  single  tract  sold,  may  not  appropriate  the 
whole  of  the  proceeds  of  the  tract  sold,  merely  because  his  interest 
in  other  tracts  not  sold  is  as  great  as  the  proceeds.    Thomason  v. 
Rogers,  155  S.  W.  1040,  —  Tex.  Civ.  App.  — . 

(24)  Where  a  landowner  and  a  broker  made  a  supplemental 
contract  to  fix  their  rights,  the  broker  can  not  recover  on  both 
contracts,  but  only  on  one.     Gossett  v.  Vaughan,  173  S.  W.  933, 

—  Tex.  Civ.  App.  — . 

(25)  Broker  given  option  with  right  to  sell;  held,  not  entitled 
to  recover  the  amount  paid  for  the  option,  in  addition  to  the 
commission  on  the  sale,  though  at  the  purchase  this  was  to  have 
applied  on  the  purchase  price.    Burt  v.  Stringfellow,  143  P.  234, 
45  Utah,  207. 

(26)  Where  a  contract  between  the  owner  of  land  and  a  build- 
ing company,  by  which  the  owner  agreed  to  convey  land  to  the 
company  to  enable  it  to  secure  a  mortgage  for  building  purposes, 


912  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

a  sale  of  land  to  third  persons  did  not  provide  for  the  payment 
of  commissions  upon  selling  the  land,  no  commission  could  be  re- 
covered. H.  E.  Orr.  Co.  v.  Interldken  Land  Co.,  133  P.  599,  74 
Wash.  340. 

(27)  Brokers   fraudulently   took   title   to   land   in   their   own 
name;  held,  to  have  no  right  to  a  sum  of  money  received,  nor  to 
commissions,  nor  to  money  paid  to  stock  same  by  a  sale  of  a  por- 
tion of  the  property  to  a  bona  fide  purchaser.    Dean  v.  Roberts, 
62  S.  44,  182  Ala.  221. 

(28)  Under  agreement  between  brokers,  one  was  to  handle  a 
matter  which  the  other  was  instrumental  in  procuring,  for  half 
the  commission,  damages  could  not  have  been  recovered  for  a  re- 
fusal to  make  any  attempt  to  negotiate  a  lease ;  held,  not  to  defeat 
a  recovery  where  a  lease  had  been  negotiated.     Collins  v.  Snow, 
106  N.  E.  148,  218  Mass.  542. 

(29)  One  who  had  no  contract  with  the  owner,  and  merely  ar- 
ranged to  divide  the  commission  with  another  broker,  also  autho- 
rized to  sell,  was  not  entitled  to  any  commission  from  the  owner. 
McCormiclc  v.  Obanion,  153  S.  W.  267,  168  Mo.  App.  606. 

(30)  Where  broker,  employed  by  owner,  arranged  with  other 
brokers  for  share  of  commissions;  held,  that  to  entitle  him  to 
such  share  it  was  not  necessary  that  the  lease  should  be  procured 
through  his  efforts.    Rraus  v.  Cammann,  154  N.  Y.  Sup.  125. 

(31)  A  real  estate  broker,  for  bringing  purchaser  to  his  prin- 
cipal, is  entitled  to  his  commission  though,  before  the  trade  is 
completed,  he  becomes  connected  with  a  corporation,  of  which  he 
notifies  his  principal,  who  thereafter  accepted  the  corporation's 
services  in  the  matter.    Northern  Immi.  Society  v.  Alger,  147  N. 
W.  100,  27  N.  D.  467. 

(32)  The  owner  of  real  property  wrote  to  a  number  of  bro- 
kers asking  them  to  sell  his  property.     A  broker  who  received 
one  of  these  letters,  and  who,  without  having  the  sale  of  the  prop- 
erty or  listing  it  on  his  books,  found  a  purchaser  and  submitted 
the  purchaser's  offer  of  a  sum  to  net  the  owner  the  sum  fixed  by 
him,  which  left  a  surplus  as  the  broker's  commission  and  cost  of 
abstract  to  be  furnished  to  the  purchaser's  attorney.     Held,  that 
though  the  broker  may  not  have  understood  his  relations  to  the 
owner,  he  was,  as  a  matter  of  law,  acting  as  the  agent  of  the 
owner,  and  hence,  such  purchaser  was  not  liable  to  the  agent  for 


PLEADINGS,  PRACTICE,  ETC.  913 

commissions  on  the  acceptance  of  his  offer.    Minto  v.  Moore,  55 
S.  542,  1  Ala.  App.  556. 

(33)  A  contract  creating  an  agency  to  sell  lands  on  commis- 
sion construed  with  respect  to  the  right  of  the  agent  to  receive 
commissions  from  deferred  payments  as  made.    Fountain  Land  & 
Iron  Co.  v.  Pearsons,  201  F.  324,  119  C.  C.  A.  562. 

(34)  A  contract  to  convey  bound  a  purchaser  to  pay  brokers 
"$300,  and  seller  agrees  to  pay  brokers  $100,  when  deal  is  com- 
pleted."   Held,  that  the  $300,  as  well  as  the  $100,  was  payable 
only  on  completion  of  the  transaction.    Stanton  v.  Carnahan,  115 
P.  330,  15  Gal.  App.  527. 

(35)  Where  a  contract  with  a  broker  for  the  sale  of  land  pro- 
vided that  commissions  should  be  due  and  payable  "on  the  settle- 
ment of  all  sales,  for  instance,  after  the  purchaser  signs  the  propo- 
sition, and  pays  the  earnest  money,  with  a  contract  to  settle  the 
balance  of  cash  required  on  the  first  payment,  then  the  commis- 
sion will  be  due  and  payable  on  that  settlement."     The  term 
"earnest  money"  was  used  synonymously  with  first  payment,  and 
"settlement  of  all  sales"  made  the  full  payment  of  a  part  of  the 
price  which  was  to  be  paid  in  money,  whether  at  the  time  of  the 
signing  of  the  contract  to  be  subsequently  executed  or  in  part 
then,  and  the  remainder  when  it  was  consummated.     Kurtz  v. 
Payne  Inv.  Co.,  135  N.  W.  1075,  156  Iowa,  376,  pet.  for  re.  over, 
but  opin.  mod.,  137  N".  W.  460. 

(36)  Under  a  contract  fixing  the  compensation  of  the  agent 
to  procure  a  purchaser  of  land,  fixing  the  time  for  payment  as  the 
time  of  the  "consummation"  of  the  sale ;  "consummation"  was  the 
passing  of  the  title,  and  the  compensation  was  contingent  upon 
that.    Morse  v.  Curley,  85  A.  196,  83  N.  J.  Law,  416. 

(37)  Where  a  contract  with  a  broker  provided  that  all  com- 
missions should  be  taken  out  of  the  sums  collected,  there  can  be 
no  recovery  for  sales  made  upon  which  the  purchase  price  had 
not  yet  been  paid.     Gossett  v.  Vaughn,  173  S.  W.  733,  —  Tex. 
Civ.  App.  — . 

(38)  Where  a  real  estate  broker,  after  earning  his  entire  com- 
mission, voluntarily  agreed  to  accept  payment  in  instalments  as 
the  purchase  price  was  paid,  provided  such  instalments  were  paid 
promptly,  and  the  principal  failed  to  make  such  payments  aud 
denied  liability.     Held,  that  the  broker  was  absolved  from  his 


914  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

agreement  to  defer  the  payments,  and  could  sue  him  for  the  en- 
tire commission.  McGehee  Lumber  Co.  v.  Tomlinson,  63  S.  919, 
66  Fla.  536. 

(39)  When  an  agreement  provided  that  the  brokers  were  to  be 
entitled  to  an  additional  sum  if  the  price  exceeded  that  asked  by 
the  seller,  they  would  be  entitled  to  such  excess  when  the  same 
was  paid,  but  an  action  for  the  excess  could  not  be  maintained 
until  the  money  was  paid.    Miller  v.  Miller,  190  111.  App.  363. 

(40)  A  contract  between  a  broker  and  a  purchaser  to  exchange 
the  principal's  flour  mill  and  other  real  estate  for  three  houses, 
and  a  contract  between  the  purchaser  and  the  principal  to  ex- 
change the  mill  for  one  of  the  houses;  held,  not  to  be  so  differ- 
ent as  to  require  the  broker  to  recover  on  a  quantum  meruit. 
Waddell  v.  Noser,  188  111.  App.  302. 

(41)  Equity  is  without  jurisdiction  of  an  action  by  a  real  es- 
tate agent  with  whom  land  was  listed  for  sale  against  another 
agent,  for  an  accounting  for  profits  received  by  the  latter,  who 
procured  a  purchaser  under  an  agreement  to  divide  the  profits 
with  the  complainant,   since  the  remedy  at  law  was   adequate. 
Wilson  v.  McVay,  193  111.  App.  417. 

(42)  A  broker  who  had  no  written  contract  of  employment  to 
procure  a  purchaser  for  real  estate,  as  required  by  Burns's  Ann. 
Stat.  1908,  Sec.  7463,  can  not  recover  for  his  expenditure  of  time 
and  money  in  procuring  a  purchaser,  in  an  action  in  which  his 
complaint  sounds  in  tort,  for  fraud  and  deceit.     Fullenwider  v. 
Goben,  95  N.  E.  1010,  176  Ind.  312. 

(43)  A  broker's  action  for  compensation  for  effecting  a  sale 
of  land  is  transitory  and  in  personam  only.    Brown  &  Brammer  v. 
Wm.  Pearson  Co.,  150  N.  W.  1057,  169  Iowa,  50. 

(43a)  Where  a  partnership  agreed  to  pay  plaintiff  a  share  of 
his  commissions  for  a  sale  of  realty  owned  by  some  of  the  part- 
ners, who  fraudulently  refused  to  collect  its  commissions,  or  where 
the  partners  fraudulently  prevented  the  collection,  the  broker 
could  have  his  rights  adjusted  in  a  court  of  equity  so  as  to  pre- 
vent the  fraud  from  being  perpetrated  upon  him.  Thompson  v. 
Price,  157  S.  W.  288,  —  Tex.  Civ.  App.  — . 

(44)  Where  there  was  an  agreement  between  plaintiff  and  de- 
fendant for  the  payment  of  a  fixed  sum,  and  the  right  to  require 
payment  accrued,  it  could  be  recovered  in  an  action  on  an  ac- 


PLEADINGS,  PBACTICE,  ETC.  915 

count  annexed.    Hutchinson  v.  Plant,  105  N.  E.  1017,  218  Mass. 
148. 

(45)  A  broker  was  given  an  exclusive  agency  for  60  days  to 
procure  a  purchaser  of  real  estate  for  a  specified  sum,  for  the 
usual  commission.     The  owner,  seven  days  before  the  expiration 
of  the  sixty  days,  sold  the  property  for  a  less  price  to  one  not 
discovered  by  the  broker,  who  was  not  negotiating  with  any  one, 
who  would  have  bought,  either  at  the  stipulated  price  or  at  the 
price  obtained  by  the  owner.    Held,  that  the  broker  could  not  re- 
cover the  contract  price,  under  the  rule  that  a  party  wrongfully 
discharged  from  his  employment  may  consider  the  contract  as 
performed,  and  recover  the  contract  price,  as  the  absolute  measure 
of  damages,  but  he  must  treat  the  contract  as  rescinded,  and,  on 
a   quantum   meruit,   recover  the   value   of  his  services,   and  the 
amount  of  his  expenses,  or  sue  for  a  breach  of  the  contract  and 
recover  the  actual  damages  sustained.     Norman  v.  Vandenburg, 
138  S.  W.  47,  157  Mo.  App.  488. 

(46)  If  a  broker  is  entitled  to  recover  any  compensation  on  a 
sale  made  by  his  principal  on  terms  different  from  those  set  forth 
in  his  contract,  he  must  sue  upon  a  quantum  meruit  and  not  on 
the  contract.     Clark,  v.  Asbury,  134  S.  W.  286,  —  Tex.   Civ. 
App.  — . 

(47)  Petition  in  a  broker's  action  for  commissions;  held,  not 
objectionable  as  not  stating  a  cause  of  action,  because  of  allega- 
tion of  an  agreement  to  sell,  and  the  other  allegation  of  bringing 
about  a  sale,  there  being  no  difference  between  a  sale  and  bring- 
ing about  a  sale.    Smith  v.  Lyons  Salt  Co.,  177  S.  W.  1057,  — 
Mo.  App.  — . 

(48)  Where,  in  a  suit  for  broker's  services,  plaintiff's  verified 
statement  alleged  that  defendants  were  entitled  to  a   credit  of 
$547.50,  while  incorrect,  was  not  specifically  denied,  the  fact  that 
plaintiff  discovered  a  mistake  on  the  trial,  and  admitted  that  he 
owed  defendants  on  an  extraneous  account  $880.67  more,  did  not 
give   defendants   an   additional    right  to  extend   the   inquiry   to 
cover  such  question.    Dempster  v.  Cochran,  174  F.  587,  98  C.  C. 
A.  433. 

(49)  In  an  action  for  broker's  commissions,  exclusively  on  the 
theory  that  plaintiff  procured  a  sale  of  part  of  the  contract  that 
he  was  authorized  to  sell,  and  did  not  allege  he  was  instrumental 


916  AMERICAN  LAW  HEAL  ESTATE  AGENCY. 

in  the  subsequent  sale,  he  was  not  entitled  to  prove  by  the  pur- 
chaser how  much  more  of  the  entire  tract  he  had  purchased,  in 
addition  to  the  original  amount  purchased.  Cone  v.  Keil,  124  P. 
548,  18  Cal.  App.  675. 

(50)  In  a  broker's  action  for  compensation  for  selling  land, 
where  the  only  cause  of  action  shown  by  the  evidence  was  one  for 
the  recovery  of  certain  property  which  they  agreed  to  give  plain- 
tiff for  making  the  sale,  or  the  recovery  of  the  value  thereof  and 
the  petition  showed  that  the  consideration  for  the  transfer  was 
plaintiff's  services.    The  fact  that  the  further  allegation  that  the 
property  was  to  be  conveyed  by  defendants,  and  accepted  by  plain- 
tiff in  lieu  of  an  agreed  commission  of  $3,000,  was  shown  to  be 
untrue,  did  not  defeat  plaintiffs  right  to  recover  the  property,  or 
have  a  decree  for  specific  performance.     Cheek  v.  Nicholson,  133 
S.  W.  707,  —  Tex.  Civ.  App.  — . 

(51)  For  the  purpose  of  calculating  an  agent's  commission  on 
an  exchange  of  property,  the  property  taken  by  the   principal 
must  be  assumed  to  be  worth  the  value  placed  upon  it  by  the  par- 
ties to  the  trade  at  the  time  the  contract  was   consummated. 
Waddell  v.  Noser,  188  111.  App.  302. 

(52)  A  contract  for  employment  of  plaintiff  to  procure  a  pur- 
chaser; held,  to  require  defendant,  on  plaintiff's  procuring  a  pur- 
chaser, to  organize  a  corporation,  and  to  put  in  its  treasury  the 
par  value  of  the  stock  which  plaintiff  was  to  receive,  should  be 
fully  paid  when  issued,  within  Kev.  Stat.  1909,  Sec.  2981.   Moore 
v.  King,  178  S.  W.  124,  —  Mo.  Sup.  — . 

(53)  In  a  real  estate  broker's  action  for  a  commission,  evi- 
dence held  insufficient  to  show  the  seller's  lack  of  good  faith  in 
the  transaction,  wherein  her  contract  to  sell  to  the  buyer  intro- 
duced to  her  by  plaintiff  fell  through,  and  she  later  consummated 
a  sale  through  another  agent  to  the  same  buyer.    Bruce  v.  Drake, 
70  S.  273,  195  Ala.  236. 

(54)  In  an  action  for  compensation  under  an  alleged  agree- 
ment by  which  plaintiffs,  for  procuring  an  option  on  land  for 
erecting  a  building  and  leasing  the  building,  were  to  receive  a 
certain  percentage  of  the  net  annual  rent,  evidence  held  to  show 
that  the  parties  used  the  term  "net  rental"  to  mean  the  gross 
rental,  less  the  expense  for  maintaining,  in  the  absence  of  which 


PLEADINGS,  PRACTICE,  ETC.  917 

the  gross  and  net  rental  were  the  same.     Kinsey  v.  Dickinson, 
140  N.  W.  983,  175  Mich.  1. 

(55)  Evidence  held  to  show  that  the  owner  did  not  list  the 
land  with  the  broker  in  the  usual  way,  but  that  he  so  understood 
that,  unless  the  broker  actually  made  a  sale,  he  should  be  paid 
nothing.    Carr  v.  Manistee  Land  &  Timber  Co.,  146  N.  W.  202, 
179  Mich.  338. 

(56)  Where  brokers  were  entitled  to  commissions  in  a  corpora- 
tion purchase  of  certain  Indian  allotments  through  another  source 
within  a  year  after  acquiring  deeds  to  certain  other  allotments, 
the  fact  that  the  corporation  did  so  was  merely  evidence  of  de- 
fendant's good  faith,  and  was  not  indicative  that  the  broker's  con- 
tract had  been  abrogated.    Lord  v.  Wapate  Irr.  Co.,  142  P.  1172, 
81  Wash.  561,  judg.  aff.  on  re.,  152  P.  329,  81  Wash.  696. 

(57)  Where    introduction   of   advertisement,   or    disclosure   of 
purchaser  is  relied  upon  to  entitle  broker  to  a  commission,  the 
evidence  must  show  that  it  was  the  foundation  of  the  negotia- 
tions resulting  in  the  sale,  though  conducted  and  concluded  by 
the  owner.    Dillard  v.  Field,  153  S.  W.  532,  168  Mo.  App.  206. 

(58)  The  fact  that  plaintiff,  who  acted  as  agent  for  defendant 
in  a  sale  of  her  property,  renders  a  statement  for  the  amount 
due  for  commission  and  services  on  the  day  the  deed  is  delivered, 
is  not  conclusive  evidence  that  plaintiff  is  not  entitled  to  addi- 
tional compensation  for  extra  services.    Wood  v.  Foster,  181  HI. 
App.  409. 

(59)  Where  a  broker's  right  to  commission  was  based  on  his 
agreement  with  a  third  person,  who  had  been  employed  by  the 
owner,  and  the  third  person  had  assigned  to  the  broker  all  inter- 
est in  his  claim  for  commission,  the  broker  could  recover  the  en- 
tire commission.     Anderson  v.  Crow,  151   S.  W.  1080,  —  Tex. 
Civ.  App.  — . 

(60)  Where  a  contract  employing  a  broker  to  procure  a  pur- 
chaser for  real  estate  did  not  fix  any  time  for  the  performance  of 
the  contract,  and  the  owner  did  not  revoke  the  agency,  nor  in- 
quire of  the  broker  as  to  what  was  being  done  in  procuring  a 
purchaser,  the  court  could  not  say,  as  a  matter  of  law,  that  a 
period  of  five  months  since  the  owner  had  heard  from  the  broker 
was  an  unreasonable  time,  so  as  to  terminate  the  contract,  and 


918  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

authorize  the  owner  to  make  a  sale  without  liability  to  the  bro- 
ker for  a  commission.  Schlagle  v.  Russell,  80  A.  164,  114  Md. 
418. 

(61)  In  an  action  for  a  share  of  broker's  commission,  evidence 
held  insufficient  to  present  the  question  for  the  jury  as  to  whether 
employment  under  which  sale  was  effected  was  a  continuation  of 
prior  negotiations.    Lucas  v.  Crenshaw.    82  A.  446  116  Md.  445. 

(62)  Where   owners,   in   December,   signed   a  contract   giving 
brokers  an  exclusive  agency  for  the  sale  of  their  property,  and 
provided  that  the  owner  should  pay  a  commission  on  any  sale 
made  by  them,  but  fixed  no  time  for  the  termination  of  the  con- 
tract, it  could  not  be  said,  as  a  matter  of  law,  that  a  reasonable 
time  for  a  sale  by  the  brokers  had  not  expired  by  the  latter  part 
of  September.     George  J.  Wanstrath  R.  E.  Co.  v.  Wenz,  170  S. 
W.  345,  185  Mo.  App.  713. 

(63)  Where  a  broker  was  only  employed  to  find  a  purchaser, 
and  had  no  power  to  agree  on  terms,  and  he  submitted  to  the 
purchaser  a  proposition  different  from  that  which  his  principal 
had  authorized,  the  purchaser's  acceptance  did  not  constitute  a 
contract  between  him  and  the  broker's  principal.    Nelson  v.  West- 
ern Union  Tel.  Co.,  143  K  W.  833,  162  Iowa,  50. 

(64)  To  "bargain,"  as  used  in  written  authority  to  broker  to 
sell  in  the  owner's  name,  implies  negotiations  over  the  terms  of 
the  agreement.     Golden  v.  Clondel,  118  P.  77,  85  Kan.  465. 

(65)  "Sell  in  the  principal's  name,"  as  used  in  a  writing  giv- 
ing authority  to  brokers,  implies  the  conclusion,  in  the  principal's 
name,  of  the  agreement  negotiated  by  the  brokers.    Id. 

(66)  A  writing  whereby  owner  authorized  brokers  to  bargain 
and  sell  in  his  name  the  property  described,  conferred  power  to 
negotiate  for  a  sale  and  to  conclude  a  contract,  in  the  owner's 
name,  binding  him  to  make  a  conveyance.    Id. 

(67)  A  letter  to  a  real  estate  agent  saying,  "If  you  care  to  try 
your  hand,  go  ahead ;  if  you  can  sell  let  me  know,  and  I  will  send 
power  of  attorney,"  is  not  authority  to  enter  into  a  written  con- 
tract of  sale,  and  to  bind  the  owner  irrevocably.    Dey  v.  Nelken, 
59  S.  104,  131  La.  154. 

(68)  The  obligation  of  an  owner  to  convey  real  estate  is  com- 
plete on  the  making  of  a  contract  with  a  duly  authorized  agent, 


PLEADINGS,  PRACTICE,  ETC.  919 

on  the  terms  and  within  the  time  authorized.    Brady  v.  Fontenot 
61  S.  838,  132  La.  826. 

(69)  Under  a  real  estate  broker's  contract  giving  him  power 
to  contract  to  convey,  he  was  authorized  to  insert  in  the  contract 
of  sale  provision  for  forfeiture  on  breach  of  contract  by  either 
party.    Stevens  v.  Odlin,  84  A.  899,  100  Me.  417. 

(70)  A  contract  to  convey,  executed  by  a  real  estate  broker 
under  authority  from  the  vendor,  is  as  valid  as  if  the  contract 
was  signed  by  the  vendor  himself.    Id. 

(71)  Where  a  broker  had  been  employed  to  obtain  a  customer 
for  a  farm  on  certain  terms,  and  on  informing  defendant  that 
such  customer  had  been  found,  was  directed,  "it  is  all  right,  go 
ahead,"  such  statement  did  not  confer  on  the  broker  authority  to 
execute  a  binding  contract  of  sale.    Record  v.  Littlefield,  106  N". 
E.  142,  218  Mass.  483. 

(72)  It  is  within  the  authority  of  an  ordinary  real  estate  agent 
to  show  a  prospective  purchaser  the  property  for  sale,  and  to  state 
its  location,  and  to  make  representations  as  to  its  attractive  fea- 
tures, and  an  agent  of  a  realty  company  was  authorized  to  point 
out  to  a  purchaser  the  land  sold.     Smith  v.  Mich.  Realty  &  Con. 
Co.,  141  N.  W.  635,  175  Mich.  600. 

(73)  The  owner  of  land  authorized  a  real  estate  agent  to  sell 
property  within  a  certain  period,  on  certain  terms,  and  agreed  to 
convey.    Held,  that  a  contract  entered  into  by  the  agent  was  en- 
forceable against  the  owner  of  the  land.     Peterson  v.  O'Connor, 
119  N.  W.  243,  106  Minn.  470,  130  Am.  St.  Rep.  618. 

(74)  An  agent  with  authority  to  sell  has  no  implied  authority 
to  assign  to  one  with  whom  he  contracts  for  the  sale,  the  rent  ac- 
cruing during  the  negotiations  or  from  the  date  of  the  contract. 
John  Gund  Brewing  Co.  v.  Tourtelotte,  121  N.  W.  417,  108  Minn. 
71,  29  L.  R.  A.  (N.  S.)  210. 

(75)  Broker  having  power  to  negotiate  a  sale  of  land  for  cash 
may  contract  for  part  payment  down,  and  the  rest  on  delivery  of 
the  deed.    Barberet  v.  Myers,  144  S.  W.  824,  240  Mo.  58. 

(76)  Vendors  of  land  are  not  entitled  to  be  relieved  of  a  con- 
tract of  sale  made  by  a  broker  because  they,  by  mistake,  under- 
stood that  the  agency  was  to  expire  at  a  given  time.    Id. 

(77)  A  broker  having  land  of  another  for  sale  or  trade,  under 
an  agreement  to  retain  all  he  could  obtain  over  a  fixed  price  as 


920  AMEBICAN  LAW  EBAL  ESTATE  AGENCY. 

his  commission,  may,  in  the  absence  of  actionable  fraud  or  deceit, 
or  objection  by  his  principals,  fix  the  price  at  any  sum  at  which 
he  may  be  able  to  lawfully  sell,  or  otherwise  dispose  of  the  land 
in  trade.  Lotson  v.  Buck,  130  N.  W.  970,  89  Neb.  28. 

(78)  Where  a  purchaser  of  property  in  the  hands  of  a  broker 
for  sale  causes  a  part  of  the  consideration  to  be  conveyed  to  the 
broker  or  to  another  designated  by  him,  which  is  retained  as  the 
broker's  commission,  the  purchaser,  in  the  absence  of  actionable 
deceit,  or  confidential  relations,  may  not  recover  the  property  so 
retained.    Id. 

(79)  A  real  estate  broker  can  not  bind  the  vendor  by  an  un- 
authorized delivery  of  a  contract  of  sale.    Smith  v.  Severn,  139  N. 
W.  858,  93  Neb.  148. 

(80)  The  use  of  the  word  "sell,"  "sale"  or  "to  sell,"  in  a  real 
estate  broker's  employment  contract,  does  not  necessarily  author- 
ize him  to  execute  a  contract  of  sale  for  and  in  his  principal's 
name.    Whitehouse  v.  Gerdis,  145  N.  W.  338,  95  Neb.  228. 

(81)  A  contract  to  sell  land,  executed  by  a  broker  in  the  name 
of  his  principal,  is  binding  on  the  principal,  where  the  broker  is 
authorized  to  execute  it.    Id. 

(82)  Where  the  owner  advertises  a  farm  for  sale,  stating  that 
interested  parties  may  address  him,  or  call  on  a  certain  broker 
for  terms,  and  writes  the  broker  that  he  will  sell  for  a  certain 
price,  on  certain  terms,  and  pay  a  certain  commission,  and  says, 
"he  could  sell,  giving  abstract,"  the  broker  is  authorized  to  make 
a  written  contract  of  sale.    Id. 

(83)  In  the  absence  of  a  special  contract  or  conferred  author- 
ity, a  broker  employed  to  sell  or  to  assist  in  selling  the  property 
has  only  a  power  to  find  a  purchaser,  and  bring  the  seller  and 
purchaser  together.     Stine  v.  U.  S.  Guarantee  &  Indemnity  Co., 
144  N.  Y.  Sup.  849,  159  App.  Div.  679,  judg.  aff.,  112  N.  E. 
1077,  217  N.  Y.  656. 

(84)  A  broker  employed  to  sell  a  junior  mortgage  interest  at 
a  specified  price  has  no  authority  to  make  a  contract  containing 
conditions,  on  the  performance  of  which  the  purchaser  agrees  to 
take  the  interest.    Id. 

(85)  A  mere  listing  of  real  estate  with  a  broker  does  not  author- 
ize him  to  bind  the  owner  by  an  executory  contract  of  sale.    Levy 
v.  Yarbrough,  136  P.  1120,  41  Okl.  16. 


PLEADINGS,  PRACTICE,  ETC.  921 

(86)  Before  a  real  estate  broker  can  bind  the  owner  by  an 
executory  contract  of  sale,  he  must  have  specific  authority  there- 
for from  the  owner.    Id. 

(87)  A  landowner  who  makes  a  sale  through  a  duly  authorized 
broker  is  bound  by  the  broker's  statement  as  to  the  quantity  of 
land.     Coughron  v.  Stinespring,  170  S.  W.  152,  132  Tenn.  636, 
L.  E.  A.  1916  C,  103. 

(88)  A  contract  by  a  landowner's  brokers  to  sell  the  land  at 
less  than  the  price  authorized,  and  exceeding  their  authority,  in- 
cluding a  water-right  and  guaranteeing  the  number  and  varieties 
of  fruit  trees,  does  not  bind  the  owner.    Smith  v.  Craig,  112  P. 
513,  61  Wash.  528. 

(89)  Purchasers  of  realty  upon  abrogation  of  the  contract  for 
defects  in  title;  held,  entitled  to  recover  $400  from  the  broker 
and  $100  from  the  owner,  for  such  broker  had  acted  as  agent  for 
them,  and  $500,  the  entire  deposit,  if  he  had  acted  for  himself. 
Depavo  v.  Rizzo,  149  P.  793,  27  Cal.  App.  200;  Id.,  149  P.  795, 
27  Cal.  App.  793. 

(90)  An  action  does  not  lie  by  one  who  has  contracted  with 
a  broker  to  purchase  land  owned  by  heirs,  to  recover  a  deposit 
made  on  account  of  purchase  price,  on  the  ground  that  there  is 
a  possibility  that  there  may  be  claims  against  the  estate  which 
would  be  a  lien  against  the  property,  where  the  defendant  offers 
to  procure  a  bond  and  pay  any  such  claims,  offering  a  deed  con- 
veying a  good  title  to  the  property,  free  from  incumbrances,  and 
the  plaintiff  failed  to  comply  or  tender  compliance  with  his  part 
of  the  contract.    Wynkoop  v.  Shoemaker,  37  App.  D.  C.  258. 

(91)  Where  plaintiff  applied  to  a  loan  broker  for  a  loan,  and 
the  broker's  principal  sent  the  loan  applied  for  to  the  broker,  to 
be  delivered  to  plaintiff  when  his  title  to  the  land,  on  which  trust 
deeds  were  offered  as  security,  was  perfected,  and  the  broker  was 
made  responsible,  and  violated  the  instruction  of  his  principal 
to  the  extent  of  advances  to  plaintiff,  and  for  money  to  satisfy  an 
outstanding  mortgage,  it  being  agreed  that  he  should  hold  balance 
until  the  defects  in  the  title  were  removed,  and  the  broker  pro- 
ceeded to  remove  the  defects,  and  after  part  of  them  had  been  re- 
moved made  another  payment  to  plaintiff,  plaintiff  can  not,  while 
the  other  defects  are  not  removed,  recover  the  balance  of  the  loan 


922  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

from  the  broker.    Peters  v.  Carroll,  134  S,  W.  49,  153  Mo.  App. 
375. 

(92)  Where  a  loan  broker,  under  an  agreement  with  plaintiff, 
retains  part  of  the  loan  applied  for  till  defects  in  the  title  to  land 
offered  as  security  by  plaintiff  should  be  removed,  the  fact  that 
the  party  making  the  loan  demanded  that  plaintiff  pay  interest 
on  the  full  amount  of  the  loan  does  not  entitle  plaintiff  to  recover 
the  balance  retained  by  the  broker.    Id. 

(93)  An  agent  of  the  lender  held  entitled  to  recover  from  the 
applicant  for  the  loan  the  cost  of  obtaining  an  abstract.     Carroll 
v.  Lemmons,  147  S.  W.  1101,  164  Mo.  App.  655. 

(94)  A  broker  procuring  a  loan  was  not  the  agent  of  the  bor- 
rower to  receive  the  money,   and  the  lender's  payment  of  the 
broker's  draft  therefor  was  a  failure  of  ordinary  care.     Robinson 
v.  Citizens'  Trust  Co.,  172  S.  W.  1160,  187  Mo.  App.  51. 

(95)  In  determining  whether  a  party  to  an  exchange  of  real 
estate  brought  about  by  one  who  acted  as  agent  for  both  par- 
ties is  precluded  from  voiding  contract  on  the  ground  that  she 
did  not  know  of  the  double  agency,  her  habits  of  life,  her  age, 
and  her  knowledge  of  the  English  language  should  be  considered. 
Neuman  v.  Friedman,  136  S.  W.  251,  156  Mo.  App.  142. 

(96)  A  tenant  in  common  who,  with  the  others,  has  made  a 
contract  to  sell  the  common  property,  is  not  liable  to  a  purchaser 
for  inducing  the  others  in  consummating  the  contract.     Daly  v. 
Cornwell,  54  N.  Y.  Sup.  107,  34  App.  Div.  27. 

(97)  A  person  who  has  contracted  to  pay  commissions  on  a 
sale  of  real  estate  can  not  object  to  such  payment,  on  the  ground 
that  the  purchaser  offered  was  an  unincorporated  society,  inas- 
much as  such  an  association  may  lawfully  hold  title  to  real  prop- 
erty.    Barrett  v.  King,  64  Pa.  Super.  Ct.  641. 

(98)  Where  broker  was  to  sell  land  at  $22,000,  on  a  commis- 
sion of  5%,  and  a  contract  was  entered  into  at  $21,500,  which 
was  signed  and  agreed  to  by  the  owner,  with  proviso  that  broker 
should  get  an  even  $1,000  "when  the  sale  is  consummated/'  the 
latter  words  must  have  referred  to  some  different  event,  and  not 
the  time  of  signing  the  contract  of  sale.    Alison  v.  Chapman,  173 
P.  389,  —  Cal.  App.  — . 

(99)  In  partition,  a  contract  to  pay  commission  to  a  broker 


PLEADINGS  PBACTICE,  ETC.         ,       923 

for  finding  a  purchaser  is  a  question  of  law  for  the  court.    Buxton 
v.  Colver,  171  P.  1158,  102  Kan.  871. 

(100)  Pub.  Laws  1913,  S238,  making  void  every  agreement, 
promise,  or  contract  to  pay  a  commission,  unless  in  writing,  does 
not  prevent  proof  of  agency  by  the  rescinding  vendee,  who  alleged 
fraud  of  the  agent  of  the  vendor,  such  statute  applying  only  as 
between  the  principal  and  the  agent.     Cox  v.  Holkeboer,  160  N. 
W.  1004,  200  Mich.  86. 

(101)  When  the  language  of  a  brokerage  contract  is  ambiguous, 
the  construction  which  the  parties  have  themselves  put  upon  it 
is  very  controlling  in  determining  their  true  intention.    Miles  v. 
Lampe,  168  N.  W.  640,  —  Neb.  Sup.  — . 

(102)  Whether  a  broker  is  authorized  by  his  contract  to  exe- 
cute a  binding  contract  of  sale,  in  his  principal's  name,  depends 
upon  the  intention  of  the  parties,  which  must  be  determined  from 
the  whole  contract  in  the  light  of  the  circumstances.    Id. 

(103)  In  an  action  for  commission,  where  words  used  in  bro- 
ker's contract  as  to  net  price  to  owner  have  a  well-defined  legal 
meaning,  parties  must  be  presumed  to  have  used  them  with  such 
meaning,  in  the  absence  of  any  showing  that  they  intended  them 
to  have  a  different  meaning.    Burton  v.  Wilson,  205  S.  W.  655, 
—  Ark.  Sup.  — . 

(104)  In  statute  of  frauds,  Sec.  10,  as  amended  by  P.  L.  1911, 
p.  703,  relating  to  commissions  of  real  estate  brokers  for  effecting 
exchange  or  sale  of  lands,  the  word  "exchange"  has  the  same 
meaning  as  at  common  law,  and  means,  a  mutual  grant  of  equal 
interests,  the  one  in  consideration  of  the  other.     Broker  held  en- 
titled to  recover  commissions.    Hdber  v.  Goldberg,  105  A.  874,  — 
N.  J.  Ct.  of  Err.  and  App.  — . 

(105)  Although  agreement  between  principal  and  broker  for 
sale  of  realty  does  not  provide  the  rate  of  commission,  or  the 
time  as  required  by  Sec.  10  of  statute  of  frauds,  as  amended  by 
P.  L.  1911,  p.  703,  the  fixing  the  same  word  as  a  commission  is 
within  the  true  intent  of  act,  a  broker  is  entitled  to  recover  it.  Id. 

(106)  Supreme  Court  is  not  prepared  to  hold  that  Civ.  Code, 
Sec.  1624,  subd.  6,  requiring  agreements  authorizing  or  employing 
an  agent  or  broker  to  purchase  or  sell  realty  for  compensation  or 
commission  to  be  in  writing,  is  not  applicable  in  case  of  a  simple 


924  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

contract  between  such  agent  or  broker  and  a  proposed  purchaser 
to  obtain  option  for  purchase  of  realty.  Howard  v.  D.  W.  Hobson 
Co.,  176  P.  715,  —  Cal.  Sup.  — . 

(107)  Where  broker,  in  reply  to  owner's  letter  inquiring  if 
broker  would  accept  a  specified  amount  as  compensation  for  ser- 
vices, declined  to  accept  such  amount,  and  stated  that  a  much 
greater  amount  would  be  right,  and  further  correspondence  did 
not  refer  to  broker's  compensation,  the  minds  of  the  parties  did 
not  meet,  and  there  was  no  enforceable  contract,  under  Burns's 
Ann.  Stat.  1914,  Sec.  7463,  requiring  broker's  contracts  to  pro- 
cure a  purchaser  of  real  estate,  in  consideration  of  certain  com- 
missions, to  be  in  writing.    Peters  v.  Martin,  122  N".  E.  16,  — 
Ind.  App.  — . 

(108)  A  memorandum  held  insufficient  under  L.  0.  L.,  Sec. 
808,  on  which  to  base  an  action  for  commissions  earned  by  plain- 
tiff as  a  broker  in  a  sale  of  real  estate,  in  failing  to  state  consid- 
eration.    Miller  v.  Payette  Valley  Land  &  Orchard  Co.,  178  P. 
987,  —  Or.  Sup.  — . 

(109)  In  oral  contract  that  if  plaintiff  could  sell  the  defend- 
ant's farm  for  a  price  and  "upon  the  terms  named"  in  a  former 
written  contract,  defendant  would  pay  him  a  commission  of  3%, 
the  quoted  words  had  reference  to  the  price  specified,  and  not  to 
the  commission  to  be  paid,  if  the  property  "is  sold,  exchanged  or 
bargained  for  by  either  party."    Oban  v.  Ducharme,  106  A.  777, 
—  Vt.  Sup.  — . 

(110)  A  broker's  contract  for  commission  "upon  consummation 
of  exchange  within  24  hours,"  referred  to  execution  of  exchange 
agreement,  and  not  to  actual  exchange  of  deeds.    Levy  v.  Dusen- 
lerry,  163  P.  231,  32  Cal.  App.  411. 

(111)  Where  broker  had  procured   a  purchaser  within   time 
limited,  fact  that  actual  exchange  of  deeds  was  not  made  within 
time  allowed  for  inquiry  into  title  will  not  defeat  his  right  to 
commission.    Id. 

(112)  Where  a  broker  was  employed  to  sell  land  at  a  certain 
price,  and  did  so,  an  amount  spent  by  the  principal  to  put  the 
land  in  condition  to  bring  the  price  at  which  it  was  sold,  could 
not  be  deducted  from  the  selling  price  for  the  purpose  of  figuring 
the  broker's  commission.     Sackett  v.  Southern  Land  Co.,  161  N. 
W.  448,  —  Iowa  Sup.  — . 


PLEADINGS,  PRACTICE,  ETC.  925 

(113)  Under  agreement  that  broker,  acting  in  the  purchase  of 
property,  should  have  one-third  of  net  profits  of  sale;  held,  that 
interest  on  the  enlistment  could  not  be  charged  in  determining 
the  amount  of  profits.    Young  v.  Canfield's  Est.,  164  P.  1134,  — 
Cal.  App.  — . 

(114)  A  contract  fixing  the  compensation  of  an  agent  to  sell 
property  at  the  excess  of  the  purchase  price  over  a  stated  sum; 
held,  plain  and  unambiguous,  so  that  it  could  not  be  so  modified 
as  to  entitle  the  agent  to  compensation  based  upon  what  the  pur- 
chase price  would  have  been,  if  the  contract  had  contained  the 
assumed  acreage.    Warne  v.  White,  164  N".  Y.  Sup.  30. 

(115)  A  broker  selling  realty  had  no  such  interest  in  contract 
for  purchase  of  land  secured  by  him  as  authorized  him  to  recover 
damages  for  loss  of  commission  from  proposed  purchaser  who  re- 
fused to  comply  with  contract.    Hill  v.  Alexander,  105  S.  W.  957, 
—  Tex.  Civ.  App.  — . 

(116)  Broker  held  not  required  under  contract  to  pay  over 
money  collected  by  it  and  receive  back  its  commissions,  but  only 
required    to    pay    difference,    after    deducting    the    commissions 
earned.     Parker  v.  Seattle  Land  &  Imp.  Co.,  165  P.  1086,  — 
Wash.  Sup.  — . 

(117)  Assignee  of  real  estate  broker  held  not  entitled  to  re- 
cover from  owner  forfeited  amount  received  from  purchaser  and 
paid  by  broker  to  secure  execution  of  option  contract  by  owner. 
Hollwan  v.   German  American  Mer.  Co.,  165  P.  30,  —  Wash. 
Sup.  — . 

(118)  A  broker  is  not  entitled  to  a  lien  on  the  property  sold 
for  his  commission.     Morse  v.  Duryea,  192  S.  W.  477,  174  Ky. 
234. 

(119)  If  seller  of  farm  was  to  receive  $40,000,  and  broker  ne- 
gotiating sale  was  to  receive  no  commission,  but  broker  procured 
buyer  to  pay  him  $1,000,  seller,  to  whom  buyer  paid  only  $40,000, 
was  not  liable  to  pay  buyer  back  $1,000,  being  retained  on  bro- 
ker's part.    Gosswiller  v.  Jansen,  162  N.  W.  45,  —  Iowa  Sup.  — . 

(120)  If  realty  broker,  who  negotiated  sale  of  farm,  was  not 
entitled  to  commission  from  seller,  and  buyer  paid  him  $1,000, 
on   representation   such   was  case,   intending  to   deduct   amount 
from  payment  to  seller,  seller  was  entitled  to  demand  and  take 


926  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

full  price,  without  deduction,  and  buyer  to  recover  from  broker 
amount  paid  him  on  his  representation.     Id. 

(121)  Under  contract  giving  exclusive  agency  for  the  sale  of 
lots,  after  specifying  time,  with  provision  for  transfer  of  unsold 
lots  when  principal  had  received  the  aggregate  sum   due  him; 
held,  that  payments  from  the  fund  collected  after  termination  of 
the  contract  period  could  not  be  excluded  in  determining  whether 
sufficient  sales  were  made  within  that  time.     Cole  v.  Merchants' 
Trust  Co.,  166  P.  871,  —  Cal.  App.  — . 

(122)  "Ability,"  within  the  rule  that,  to  be  entitled  to  com- 
mission, the  broker  must  procure  a  customer  able,  etc.,  means 
that  he  must  have  the  money  at  the  time  for  cash  payment,  and 
not  merely  property  on  which  he  could  raise  it.    Regnor  v.  Mack- 
rill,  164  K  W.  335,  —  Iowa  Sup.  — . 

(123)  Where  a  broker  brought  a  landowner  and  a  corporation 
together,  and  a  lease  of  the  land  was  made  to  the  corporation,  to- 
gether with  an  option  to  purchase,  the  broker  to  have  a  certain 
commission  if  the  corporation  exercised  its  option,  a  sister  of  a 
stockholder  who  controlled  the  corporation   could  purchase  the 
land  for  her  own  use  and  benefit,  without  the  land  being  bur- 
dened with   a  lien   for  the   broker's   commission.     Saunders   v. 
Berry,  214  S.  W.  58,  —  Ark.  Sup.  — . 

(124)  Under  authority  to  broker  to  sell  lands,  terms,  "not  less 
than  one-fifth  down,  balance  in  four  equal  annual  instalments," 
principals  were  not  bound  by  a  sale  15/26  of  price  payable  at 
date  of  transfer  of  an  equity  to  broker,  balance  in  two  annual  in- 
stalments, shortly  afterwards  discounted  and  paid  to  broker,  and 
appropriated  by  him,  all  without  knowledge  of  principals.  Schmal- 
ing  v.  Swain,  183  P.  580,  —  Cal.  App.  — . 

(125)  Owners'  agreement  to  pay  broker  a  commission  "if  the 
property  is  sold  or  exchanged  before  six  months,  is  terminable, 
regardless  of  who  negotiated  the  sale;"  held  legal.     Greene  v. 
Minn.  Billiard  Co.,  176  K  W.  239,  —  Wis.  Sup.  — . 

(126)  In  view  of  Rev.  Acts,  Sec.  5084,  defining  an  agreement 
to  sell  and  buy,  and  Sees.  5031,  5039,  5041,  5043,  as  to  the  con- 
struction of  contracts,  a  contract  to  sell  land,  providing  for  pay- 
ments in  instalments,  the  deposit  of  the  deed  in  escrow,  and  the 
forfeiture  of  payments  for  default;  held,  not  a  "selling  within 


PLEADINGS,  PRACTICE,  ETC.  927 

the  agreement  to  pay  a  commission  to  the  broker"  at  time  of  sale. 
Wright  Land  &  Inv.  Co.  v.  Evan,  186  P.  681,  —  Mont.  Sup.  — . 

(127)  In  a  broker's  action  for  commission,  instructions  requir- 
ing the  jury,  before  finding  for  plaintiff,  to  find  that  the  pur- 
chaser was  influenced  to  purchase  the  land  by  plaintiff,  were  not 
erroneous,  as  "influenced",  is  practically  synonymous  with  "in- 
duced" or  "procured",  and,  if  anything,  is  weaker  than  those 
words.    Schwabe  v.  Estes,  218  S.  W.  908,  —  Mo.  App.  — ;  Low 
v.  Paddock,  220  S.  W.  969,  —  Mo.  App.  — . 

(128)  Agreement  by  large  stockholder  to  pay  broker  a  commis- 
sion for  effecting  a  sale  of  corporate  lands;  held,  when  construed 
with  reference  to  an  option  contract  executed  by  the  corporation 
only  shortly  before,  to  be  conditioned  upon  payment  in  accord- 
ance with  the  terms  of  the  option  contract.    Hartman  v.  Selling, 
189  P.  887,  —  Or.  Sup.  — . 


PART  VI. 

FORMS.    LISTING,  BROKERAGE  AND 
OTHER  CONTRACTS. 


929 


No.  1 
Listing  of  Property  with  Agent  for  Sale 

I, ,  the  owner  in  fee  simple  of ,  do  hereby  au- 
thorize and  appoint  ,  a  real  estate  dealer  of  ,  as 

my  agent  to  procure  the  sale  of  the  above-mentioned  real  estate, 
and  agree  to  convey  the  same  when  a  purchaser  has  been  secured. 
I  further  agree  that  said  property  shall  be  left  with  said  real 
estate  dealer  for  sale,  for months  from  date,  and  there- 
after until  thirty  days'  notice  in  writing  of  withdrawal,  and  if 

said  shall  sell,  or  in  any  manner  be  instrumental  in 

selling  said  real  estate  during  said  time,  I  will  pay  said , 

for  his  services,  dollars,  the  same  to  be  paid  to  him  out 

of  the  first  money  received  on  such  sale.  I  will  furnish  abstract 
showing  safe  title  in  case  of  sale,  and  I  agree  not  to  place  said 
property  in  the  hands  of  any  other  agent  or  agents  during  the 
continuance  of  this  agreement.  Property  listed  at  $ 

Witness  my  hand  this day  of ,  19 


,19 

hereby  accept  this  agency  for  said  property  on  the 

terms  stated. 


,19 

hereby  agree  to  purchase  the  above  described  property, 

at  the  urice,  and  upon  the  terms  above  stated. 


No.  2 
Listing  of  Property  with  Agent  for  Sale  (another  Form) 

This  agreement  made  this day  of ,  19 ,  be- 
tween   ,  of ,  hereinafter  called  principal,  and , 

hereinafter  called  agent,  witnesseth: 

That  said  principal  has  this  day  placed  with  said  real  estate 

931 


932  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

agent  for  sale  the  following  described  real  estate,  of  which  said 
principal  is  the  owner  in  fee  simple,  located  in  the  township  of 
,  county  of  ,  State  of ,  and  more  particu- 
larly described  as  follows  (here  insert  description) : 

Said  real  estate  agent  shall  have  the  agency  and  sale  of  said 
property  for  a  period  of months  from  date,  at  the  stipu- 
lated price  of dollars.  If  said  real  estate  agent  shall  sell 

said  property  for  said  price,  or  some  lower  price  which  said  prin- 
cipal may  authorize  him  to  accept,  then  said  real  estate  agent  shall 

receive  a  commission  of per  cent  on  said  sale.     If  said 

real  estate  agent  shall  sell  said  property  for  more  than  the  price 
named  above,  said  principal  hereto  agrees  to  divide  said  excess, 
half  and  half,  with  said  real  estate  agent,  in  addition  to  his  com- 
mission. 


,  19 

hereby  accept  this  agency  for  said  property  on  the 

terms  stated. 


,  19 

hereby  agree  to  purchase  the  above  described  property, 

at  the  price,  and  upon  the  terms  above  stated. 


No.  3 
Exclusive  Agency  for  the  Sale  of  Real  Estate 

I  hereby  employ  the agency  as  my  sole  agent,  and  give 

it  the  exclusive  right  to  sell,  as  such  agent,  for  months, 

and  thereafter  until  terminated  by  five  days'  notice,  in  writing, 
from  me,  to  sell  or  assist  in  selling,  to  exchange,  or  assist  in  ex- 
changing, or  finding  a  purchaser,  for  the  following  described  real 

estate,  situate  in township,   county  and  State  of 

,  to-wit :  ,  for  the  sum  and  price  of 

dollars,  or  such  other  sum  as  may  be  hereafter  agreed  upon,  upon 

the  following  terms,  to-wit :  deferred  payments  to  bear per 

cent,  interest  from  date  of  sale,  and  be  secured  by  first  mortgage 
on  said  real  estate. 


FOEMS.  933 

And  I  hereby  agree  and  bind  myself  on  demand  to  pay  to  said 
agency  but  of  the  first  purchase  money  paid  on  said  real  estate, 
upon  sale  being  effected,  directly  or  indirectly,  for  its  services 

in  securing  such  purchaser,  a  commission  of  per  cent. 

upon  whatever  amount  said  property  is  sold  for,  and  should  above 
property  be  sold  to  parties  who  have  been  negotiating  with  said 
agent  for  said  property,  within  sixty  days  after  withdrawal  of 
this  contract  of  agency,  the  above  named  commission  is  then  due 
such  agency. 

The  agency  agrees  to  pay  for  advertising  said  property  and 
pushing  the  sale  as  fast  as  possible,  and  to  charge  nothing  except 
in  the  event  of  sale  as  aforesaid. 

Witness  my  hand  this day  of ,  19 


,19.... 

hereby  accept  this  agency  for  said  property  on  the  terms 

stated. 


,19.... 

hereby  agree  to  purchase  the  above  described  property, 

at  the  price,  and  upon  the  terms  above  stated. 


No.  4 

Real  Estate  Board  Contract  of  Exclusive  Agency  to  Sell 
Real  Estate 

,19.... 

To 

In  consideration  of  your  listing  for  sale  and  undertaking  to 
find  a  purchaser  for  the  real  estate  described  on  the  memorandum 
on  the  reverse  side  of  this  card,  I  hereby  grant  and  give  to  you 

the  sole  and  exclusive  right  to  sell  the  same  for  a  period  of 

from  this  time,  and  thereafter  until  notified  by  me  in 

writing. 

In  the  event  said  real  estate  is  sold  by  you,  or  by  myself,  or  by 
any  other  person  or  agent  during  the  said  time,  for  such  price, 
and  upon  said  terms,  or  for  a  price  and  upon  terms  acceptable  to 
me,  then,  and  in  either  of  said  events,  in  consideration  of  your 
services  in  this  connection,  I  promise  and  agree  to  pay  you  a 


934  AMERICAN  LAW  REAL  ESTATE  AGENCY, 

regular  fixed  commission,  as  adopted  by  the   real  estate 

board,  or  in  the  event  said  real  estate  is  traded  or  exchanged  by 
myself  for  other  property  during  said  time,  and  whether  by  and 
through  your  efforts  or  through  my  own  efforts,  or  by  the  efforts 
of  some  other  person  or  agent,  I  promise  and  agree  to  pay  you 
such  commission  on  the  list  price  fixed  in  said  memorandum. 


,19.... 

hereby  accept  this  agency  for  said  property  on  the  terms 

stated. 


,19.... 

hereby  agree  to  purchase  the  above  described  property, 

at  the  price,  and  upon  the  terms  above  stated. 


No.  5 

Uniform  Sale  Contract  Adopted  by  the  Cincinnati  Real 
Estate  Board 

,19.... 

hereby  authorize. .  and  employ as  sole  agent 

to  sell  the  following  described  property,  situate  in  the    '., 

county  of ,  and  State  of ,  and  known  as ,  for 

the  sum  of dollars,  payable 

guarantee . .   a  marketable  title,  and  will  convey  said 

property  by  deed  of  general  warranty,  in  fee  simple,  with  release 
of  dower,  and  in  consideration  of  your  efforts  to  secure  a  pur- 
chaser,   ,  agree . .  to  pay  you  a  commission  of per 

cent,  on  the  sum  for  which  said  property  may  be  sold  or  ex- 
changed ;  and  further  agree  that  you  shall  have  the  exclusive  right 
to  sell  said  property  for  a  period  of  six  months,  and  thereafter, 

until written  notice  withdrawing  the  same,  and  that  you 

shall  be  entitled  to  your  commission  if  the  property  is  sold  or  ex- 
changed by  you,  or  the  undersigned,  or  any  other  person,  at  any 
price  acceptable  to  the  undersigned  during  the  existence  of  this 
contract. 
,  19 


FOBMS.  935 

hereby  accept. .  this  agency  for  said  property  on  the 

terms  stated. 


,  19.... 

hereby  agree . .   to  purchase  the  above  described  prop- 
erty, at  the  price,  and  upon  the  terms  above  stated. 


(On  the  form,  there  is  space  on  the  back  to  insert  description.) 

No.  6 

Uniform  Contract  to  Procure  a  Purchaser  Adopted  by  the 
Cincinnati  Real  Estate  Board 

,19.... 

I  hereby  agree  to  sell  the  following  property,  viz.:     (describe 

the  same),  for  the  sum  of   dollars,  payable    (state  the 

terms),   and  authorize    to   procure  a   purchaser  for  the 

same,  and  agree  to  pay a  commission  of per  cent. 

on  the  amount  for  which  said  property  may  be  sold.    I  guarantee 
the  title  good,  and  will  convey  by  deed  of  general  warranty,  with 

release  of  dower.     In  consideration  of   efforts  to  find  a 

purchaser,  I  agree  that  shall  have  the  exclusive  right  to 

sell  said  property  for  six  months,  and  thereafter  until  I  give 

written  notice  withdrawing  the  same.    It  is  further  agreed 

that shall  be  entitled  to commission  if  the  prop- 
erty is  sold  during  the  existence  of  this  contract  by or  the 

undersigned,  or  any  other  person,  at  any  price  acceptable  to  the 
undersigned. 


,19.... 

hereby  accept  the  agency  for  said  property  on  the  terms 

above  stated. 


,19.... 

I  hereby  agree  to  purchase  the  above  described  property  at  the 
price  and  upon  the  terms  above  stated. 


936  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

No.  7 
Employment  of  Agent  to  Secure  a  Loan 

....,19. 


To 

I,  ,  do  hereby  authorize  and  appoint  you  as  my  agent 

to  procure  for  me  a  loan  of dollars,  to  be  secured  by  a 

mortgage  on  my  real  estate,  which  I  own  in  fee  simple,  and  which 
is  described  as  follows,  to-wit:  (here  insert  description  contained 
in  the  deed),  and  agree  to  furnish  to  the  lender,  or  his  attorney, 
an  abstract  of  title,  showing  the  title  to  be  clear  and  unincum- 
bered  (if  incumbered,  state  to  whom,  the  amount  of  the  mort- 
gage, and  the  book  and  page  where  recorded),  and  promise  to 
execute  and  deliver  a  mortgage,  with  release  of  dower,  to  secure 
the  payment  of  the  aforesaid  sum,  which  shall  be  made  payable 
in  ....  years  from  date,  and  to  bear  interest  at  not  to  exceed 
per  cent,  per  annum. 

I  further  agree  that  on  procuring  the  said  loan  I  will  pay  to 

you  a  commission  of per  cent,  on  the  amount  of  the  loan. 

Your  agency  to  be  exclusive,  and  to  continue  until ,  19. . ., 

and  thereafter  until  written  notice  from  me  withdrawing  same. 


,  19 

hereby  accept  this  agency  on  the  terms  stated. 


No.  8 
Power  of  Attorney  to  Sell  Lands 

Know  all  men  by  these  presents,  that  I,   ,  of   , 

have  made,  constituted  and  appointed,  and  by  these  presents  do 

make,  constitute  and  appoint,   ,  of  ,  my  true  and 

lawful  attorney  in  fact,  for  me  and  in  my  name,  place  and  stead, 
to  bargain,  sell,  and  convey  in  fee  simple,  by  deed  of  general  war- 
ranty, for  such  price,  upon  such  terms  of  credit,  and  to  such  per- 
son or  persons,  as  he  shall  think  fit,  the  following  described  prem- 
ises, situate  in county,  and  State  of ,  and  described 

as  follows:  (describe  the  property),  giving  and  granting  unto 
my  said  attorney  full  power  and  authority  to  do  and  perform  all 


FORMS.  937 

and  every  act  and  thing  whatsoever,  requisite  and  necessary  to  be 
done  in  and  about  the  premises,  as  fully,  to  all  intents  and  pur- 
poses, as  I  might  or  could  do,  if  personally  present,  with  full 
power  of  substitution  and  revocation;  hereby  ratifying  and  con- 
firming all  that  my  said  attorney  or  his  substitute  shall  lawfully 
do,  or  cause  to  be  done,  by  virtue  hereof. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal, 

this day  of ,  19 

Signd,  sealed,  and  acknowl-  (Seal) 

edged  in  presence  of  us : 


(This  must  be  acknowledged  before  a  Notary  Public.) 

If  it  is  necessary,  under  the  laws  of  the  state,  that  the  wife  join 

in  the  deed  of  her  husband,  then  she  should  join  in  the  power  of 

attorney  to  sell  lands. 

No.  9 
Power  of  Attorney  to  Lease  Lands 

Know  all  men,  that  I, ,  of  the of ,  state 

of ,  do  hereby  constitute  and  appoint ,  of  the 

of ,  state  of ,  my  attorney  in  fact,  for  me  and  in  my 

name  to  demise,  lease,  and  to  farm  let,  by  leases,  duly  executed, 
for  such  term  or  number  of  years,  to  such  person  or  persons,  at 
such  yearly  or  other  rents,  in  money  or  kind,  as  he  may  think  fit, 
the  following  premises,  or  any  part  thereof,  situate  in  (here  de- 
scribe the  premises).  Hereby  ratifying  and  confirming  all  such 
agreements,  receipt  for  rent,  leases,  and  other  things,  which  shall 
be  made,  executed,  or  acknowledged  in  the  premises,  by  my  said 
attorney,  the  same  as  if  I  were  personally  present  and  did  the 
same. 

In  witness  whereof,  I,  the  said ,  have  hereunto  set  my 

hand  and  seal,  this day  of ,  19 

Signed,  sealed  and  delivered  (Seal) 

in  presence  of: 


If  it  is  necessary  that  the  lease  be  acknowledged  and  recorded, 
then  the  power  also  must  be. 


938  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

No.  10 
Contract  for  the  Sale  of  Real  Estate 

This  agreement  made  and  entered  into  at ,  this 

day  of ,  19 ,  by  and  between  ,  of ,  wit- 

nesseth  that  the  said hath  sold,  and  doth  agree  to  convey 

in  fee  simple  unto  said ,  his  heirs  and  assigns  forever,  by 

a  good  and  sufficient  deed  of  general  warranty,  with  release  of 

dower,  on  or  before  the day  of ,  19 ,  upon  the 

punctual  payment  by  said    of  the  consideration  money 

hereinafter  mentioned,  the  following  premises,  situate  in , 

county  of ,  and  State  of ,  and  bounded  and  described 

as  follows:  (here  give  description  as  in  the  deed),  together  with 
all  the  privileges  and  appurtenances  to  the  same  belonging,  and 
all  the  rents,  issues  and  profits  thereof. 

And  the  said for  himself,  and  for  his  heirs,  executors, 

administrators,  and  assigns,  does  covenant  and  agree  to  and  with 

,  his  heirs  and  assigns,  that  he  will  pay  to  the  said , 

his  heirs  and  assigns,  the  sum  of dollars,  the  consideration 

money  for  said  premises,  in  the  manner  following :  ......  dollars 

at  the  time  the  said shall  execute  and  deliver  a  good  and 

sufficient  deed  of  general  warranty ;   dollars  in  one  year, 

and dollars  in  two  years  thereafter,  the  same  to  be  secured 

by  notes  and  mortgages  on  the  premises. 

All  assessments  and  taxes  that  now  are  or  may  hereafter  be 
levied  or  assessed  on  said  premises  are  to  be  paid  in  the  manner 
following:  all  assessments  levied  hereafter  to  be  paid  by  the  said 

The  said    to  pay  the  taxes   due   and  payable 

,  19 The  said   hereby  agrees  that  the  said 

shall  enter  into  possession  of  said  premises  on  the 

day  of ,  19. . . .,  to  use  and  improve  as  his  own,  in  a  good 

and  husbandlike  manner. 

It  is  understood  by  and  between  the  parties  to  this  agreement, 

that  if  the  said  shall  fail  to  pay  the  said  consideration 

money,  or  the  assessments  or  taxes  as  herein  stipulated,  then  this 
agreement  to  be  void  as  it  regards  the  said ,  at  his  option. 

In  testimony  whereof,  the  said and have  here- 


FORMS.  939 ' 

unto  set  their  hands  and  seals,  the  day  and  year  first  above 
written. 

Signed  and  sealed  in  the  pres- 
ence of  us : 


No.  11 
Agreement  for  Sale  and  Purchase  of  Land 

Agreement  made  and  entered  into  on  this day  of  19. ., 

between ,  of ,  hereinafter  called  vendor,  and , 

of ,  hereinafter  called  purchaser,  being  respectively  parties 

of  the  first  and  second  part. 

1.  The  said  vendor  agrees  to  sell  and  the  said  purchaser  to 

buy,  for  the  sum  of dollars,1  all  these  parcels  of  land,2 

with  the  buildings  (if  any)  thereto  belonging,  situate  at , 

in  the  county  of    ,  bounded  and   described  as   follows :' 

(here  describe),  all  which  said  premises  are  set  forth  in  the  plans 
hereto  annexed  and  signed  by  both  parties  hereto,  together  with 
all  the  rights,  privileges  and  appurtenances  thereunto  belonging, 
or  in  any  wise  incident  or  appurtenant  thereto.4 

2.  And  the  vendor  further  agrees  that  he  will,  at  his  own  ex- 
pense, prepare,  and  within days  from  date  hereof,  deliver 

to  said  purchaser,  or  to  his  attorneys,  an  unexecuted  deed  of  said 
premises,  or  will  furnish  him  with  other  sufficient  information  to 
enable  him  to  examine  the  title  to  the  said  premises. 

3.  Should  the  purchaser  insist  on  any  objection  to  the  title 
or  conveyance  which  the  vendor  may  be  unable  or  unwilling  to 
remove  or  comply  with,  the  vendor  may,  at  any  time,  rescind  this 
agreement  of  sale,  and,  in  that  event,  he  shall  return  the  deposit 
to  the  purchase^*  who  shall  not  be  entitled  to  any  interest,  dam- 
ages or  waste. 

4.  If  there  should  be  any  error  or  omission  affecting  the  quan- 
tity of  the  land,  or  in  the  description  of  the  property,  before  the 
actual  conveyance  of  the  same,  but  not  afterwards,  compensation 
shall  be  allowed  or  given,  as  the  case  may  require. 

5.  A  deposit  of   dollars  of  the  purchase  money  shall 

be  paid  by  the  purchaser  to  the  vendor  on  the  execution  of  this 


940  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

agreement,  and  the  remainder  of  the  purchase  money  shall  be 

paid  to  him  on  the day  of next  ;6  and  thereupon 

the  vendor,  and  all  other  necessary  parties,  if  any,  shall  execute 
a  proper  conveyance  of  the  premises  to  the  purchaser,  in  fee 
simple,  free  from  all  incumbrances. 

6.  Possession  of  said  premises  shall  be  delivered  to  said  pur- 
chaser on  the day  of next,  and  as  and  from  that 

date  all  rents,  taxes,  all  other  income  or  charges  shall,  if  neces- 
sary, be  apportioned  between  the  vendor  and  purchaser. 

7.  If  from  any  cause  whatever,  except  from  the  wilful  neglect 
or  default  of  the  vendor,  the  completion  of  the  purchase  shall  be 

delayed  beyond  the  said day  of next,  the  purchaser 

shall  pay  interest  at  the  rate  of per  cent,  per  annum  on 

the  balance  of  his  purchase  money  from  that  date  until  the  pur- 
chase shall  be  completed. 

8.  If  the  purchaser  shall  neglect  or  fail  to  comply  with  the 
foregoing  stipulations  on  his  part,  the  vendor  shall  be  at  liberty 
to  rescind  the  present  sale  and  to  resell  the  premises  at  auction 
or  private  contract ;  and  any  deficiency  in  price  which  may  happen 
on  said  resale,  together  with  all  expenses  attending  it,  shall  im- 
mediately afterward  be  repaid  by  the  present  purchaser  to  the 
vendor,  and  shall  be  recoverable  as  liquidated  damages. 

In  witness  whereof,  etc. 

ilf  the  consideration  is  payable  otherwise  than  In  cash,  here  add: 
to  be  paid  as  hereinafter  mentioned. 

2  If  a  moiety  or  other  undivided  interest  be  sold,  here  insert:  all 
that  undivided  moiety  (or  other  portion)  of  said  estate. 

a  In  case  all  or  any  part  of  the  premises  are  occupied  by  tenants, 
here  add:  and  which  said  premises  (or  a  part  of  which  said  premises) 
are  in  the  occupation  of  the  several  tenants,  as  shown  by  the  schedule 
hereto  annexed. 

4  If  sold  subject  to  any  exception  or  reservation,  state  same  here. 
If  sold  subject  to  a  mortgage  add:    The  said  premises  are  sold  sub- 
ject to  a  mortgage  for  the  sum  of  dollars,  made  by  said  vendor  to 
dated  day  of  19 which  said  mortgage,  with  the  in- 
terest thereon,  from  and  after  the  day  of   ,  19 ,  the 

said  purchaser  hereby  assumes. 

If  sold  subject  to  tenancies  add:  The  said  premises  are  sold  subject 
to  the  existing  tenancies,  a  schedule  of  which  shall  be  given  to  the 
purchaser  upon  the  execution  of  the  conveyance  herein  provided  for. 

5  Indicate  the  place  selected  to  close  the  transaction;   i.  e.,  to  pay 
the  remainder  of  the  purchase  money,  and  to  execute  and  deliver  the 
deed. 


FORMS.  94.1 

No.  12 
Agreement  for  the  Sale  of  Land,  with  Special  Conditions 

Agreement  made  this  day  of ,  19 ,  between 

,  of ,  hereinafter  called  the  vendor,  and ,  of 

,  hereinafter  called  the  purchaser. 

1.  The  said  vendor  agrees  to  sell  and  the  said  purchaser  agrees 

to  buy,  for  the  sum  of   dollars,  whereof   dollars 

shall  be  paid  immediately  on  the  execution  of  this  agreement,  and 

the  residue  on  the   day  of  next,  at  the  office  of 

,  when  and  where  the  purchase  shall  be  completed,  in  fee 

simple,  free  from  any  incumbrances,  of  all  that  estate  situate  at 
,  bounded  and  described  as  follows: 

2.  The  vendor  shall  prepare,  or  cause  to  be  prepared  at  his 
own  expense,  a  proper  deed  of  conveyance   (with  full  covenants 
of  warranty)  of  the  premises  to  the  purchaser,  and  shall  deliver 
such  deed,  or  cause  it  to  be  delivered  to  the  purchaser,  or  his  at- 
torney, for  examination,  not  less  than days  before  the  said 

day  of ,  19 

3.  The  possession  shall  be  retained  by  the  vendor  up  to  the 
said  date  fixed  for  completion  of  the  purchase,  when  the  purchaser 
shall  pay  the  residue  of  the  purchase  money,  and  the  vendor  shall 
execute  said  deed,  whereupon  possession  shall  be  delivered  at  once 
to  the  purchaser. 

4.  All  taxes,  rates  and  assessments  upon  said  property,  not 
discharged  by  the  vendor,  shall  be  apportioned  between  him  and 
the  purchaser  as  from  that  day. 

5.  If  from  any  cause  whatever  the  purchase  shall  not  be  com- 
pleted on  the  said day  of ,  19 ,  the  purchaser 

shall  pay  interest  at  the  rate  of per  cent,  per  annum  on 

the  unpaid  purchase  money  from  that  date  until  the  completion 
of  the  purchase. 

In  witness  whereof,  etc. 


94:3  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

No.  13 
Agreement  for  Sale,  with  Special  Conditions  (Short  Form) 

Agreement  made  the day  of  19. . . .,  between ,  of 

,  party  of  the  first  part,  and ,  of ,  party  of 

the  second  part. 

1.  The  said  party  of  the  first  part,  for  the  consideration  here- 
inafter mentioned,  covenants,  promises  and  agrees  with  the  said 
party  of  the  second  part,  that  he,  the  party  of  the  first  part,  shall 

and  will,  on  or  before  the day  of next,  at  the  cost 

and  charge  of  the  said  party  of  the  first  part,  by  a  good  and  suffi- 
cient deed  of  conveyance,  free  from  all  incumbrances,  grant  and 
convey  unto  the  said  party  of  the  second  part,  all  that  parcel  of 

land   ,  together  with  all  and  singular  the  buildings  and 

other  improvements  and  appurtenances  thereunto  belonging,   to 
have  and  to  hold  to  him,  the  said  party  of  the  second  part,  his 
heirs  and  assigns  forever. 

2.  And  the  said  party  of  the  second  part  hereby  covenants, 
promises  and  agrees  with  the  said  party  of  the  first  part,  that  he, 
the  said  party  of  the  second  part,  shall  and  will  well  and  truly 
pay  unto  the  said  party  of  the  first  part,  the  sum  of dol- 
lars, upon  the  delivery  of  the  aforesaid  mentioned  deed  of  convey- 
ance. 

In  witness  whereof,  etc. 

No.  14 

Agreement  for  the  Sale  of  Land,  with  Provision  Against 

Nuisances 

This  indenture,  made  this day  of .,  19. . . .,  be- 
tween   ,  of ,  party  of  the  first  part,  and ,  of 

,  party  of  the  second  part,  witnesseth : 

Said  party  of  the  first  part,  in  consideration  of  the  sum  of 
dollars  to  him  in  hand  paid,  and  of  the  covenants,  agree- 
ments and  conditions  herein,  hereby  agrees  to  sell  unto  the  said 
party  of  the  second  part,  all  that  certain  piece  of  land  in  the 
county  of and  State  of ,  described  as  fol- 
lows: (describe),  for  which  the  said  party  of  the  second  part 


FOBMS.  943 

hereby  agrees  to  pay  said  party  of  the  first  part  in  manner  follow- 
ing: 

Said  party  of  the  first  part,  upon  receiving  such  payments,  in 
the  manner  and  at  the  times  hereinabove  specified,  shall  execute 
and  deliver  to  said  party  of  the  second  part,  or  to  his  assigns,  a 
warranty  deed,  conveying  said  premises,  free  from  all  incum- 
brances,  and  said  deed  shall  contain  a  provision  against  the  al- 
lowance or  permission  of  nuisances,  especially  as  to  the  erection 
of  buildings  as  follows:  No  cottage,  or  other  building,  shall  be 

erected  or  permitted  within  fifty  feet  of  the  front  line  of 

street,  nor  within feet  of  the  street  line,  or  any  other  lot 

in  said  premises;  and  said  party  of  the  second  part,  his  heirs, 
executors,  administrators  or  assigns,  shall  not,  at  any  time  here- 
after, during  his  or  their  ownership,  erect,  make,  establish,  carry 
on  and  promote,  cause  or  suffer  to  be  erected,  established  or  car- 
ried on,  in  any  manner,  on  the  above  described  premises,  any 
slaughter-house,  livery-stable,  soap-factory,  foundry,  tanning- 
factory,  bakery,  gunpowder-factory,  or  other  manufactory,  trade, 
business  or  calling  whatsoever,  which  may  be,  in  any  way,  noxious 
or  offensive  to  said  neighborhood,  or  to  erect,  build  or  commence 
any  building  whatsoever  with  intent  to  use  the  same  for  any  of 
the  purposes  aforesaid. 

And  it  is  understood  that  the  stipulations  herein  shall  apply  to 
and  bind  the  heirs,  administrators  and  assigns  of  the  respective 
parties  hereto. 

In  witness  whereof,  etc. 

No.  15 
Agreement  for  the  Purchase  of  Farm  Land  on  Long  Time 

Agreement  made  this  day  of ,  19 . . . .,  between 

,  of ,  party  of  the  first  part,  and ,  of , 

party  of  the  second  part. 

1.     Said  party  of  the  first  part,  in  consideration  of  the  sum  of 

dollars,  to  be  paid  to  the  said  party  of  the  first  part,  and 

of  the  covenants  to  be  performed  by  the  said  party  of  the  second 
part,  as  hereinafter  expressed,  hereby  agrees  to  sell  to  the  said 
party  of  the  second  part,  all  that  certain  tract  of  land  situate  in 
the  township  of ,  county  of ,  and  State  of , 


944  AMERICAN  LAW  SEAL  ESTATE  AGENCY. 

known  and  described  as  follows:   (describe),  with  the  privileges 
and  appurtenances  thereunto  belonging. 

2.  The  said  party  of  the  second  part,  in  consideration  of  the 
covenants  herein  contained  on  behalf  of  the  said  party  of  the  first 
part,  agrees  to  purchase  of  the  said  party  of  the  first  part  the 
above  described  land,  and  to  pay  for  the  same  to  said  party  of 
the  first  part,  or  his  legal  representatives,  the  sum  of dol- 
lars, in  manner  following,  that  is  to  say  (set  forth  in  detail  the 
terms  of  payment),  with  interest,  to  be  computed  from  the  date 

of  these  presents,  at  the  rate  of per  cent,  per  annum  on 

the  whole  sum  that  shall  be,  from  time  to  time,  unpaid,  and  to  be 

paid  annually,  both  principal  and  interest  to  be  paid  at   

aforesaid;  and  also,  that  he  will,  so  long  as  any  part  of  the  prin- 
cipal or  interest  of  the  said  consideration  money  remains  unpaid, 
well  and  faithfully,  in  due  season,  in  each  and  every  year,  pay, 
or  cause  to  be  paid,  all  taxes  and  assessments,  ordinary  and  ex- 
traordinary, that  may,  for  any  purpose  whatever,  be  levied  or  as- 
sessed on  said  premises  or  on  this  contract;  and  that  he  will  not 
commit,  or  suffer  any  other  person  to  commit,  any  waste  or  dam- 
age to  the  said  land,  or  the  appurtenances,  except  for  firewood  or 
otherwise,  for  his  own  use,  or  while  clearing  the  lands  for  cultiva- 
tion in  the  ordinary  manner. 

3.  That  said  party  of  the  first  part  further  covenants  and 
agrees  with  the  said  party  of  the  second  part,  that  upon  the  faith- 
ful performance  by  the  said  party  of  the  second  part  of  the  cove- 
nants and  agreements  by  him  to  be  performed,  and  upon  the  pay- 
ment of  the  several  sums  of  money  above  mentioned,  and  the  in- 
terest thereon,  at  the  times,  in  the  manner,  and  at  the  place  above 
mentioned,  to  the  said  party  of  the  first  part,  that  thereupon  the 
said  party  of  the  first  part  will  well  and  faithfully  execute  and 
deliver  a  good  and  sufficient  deed  or  deeds,  and  thereby  convey  to 
the  said  party  of  the  second  part,  his  heirs  and  assigns,  a  good  and 
unincumbered  title,  in  fee  simple,  of  the  above  described  premises, 
with  their  appurtenances. 

4.  It  is  further  mutually  covenanted  and  agreed,  by  and  be- 
tween the  parties  hereto,  that  the  said  party  of  the  second  part 
may  enter  on  the  said  land,  and  remain  thereon  and  cultivate  the 
same,  as  long  as  he  shall  fulfil  and  perform  all  the  covenants  and 
agreements  hereinbefore  mentioned,  on  his  part  to  be  fulfilled  and 


FORMS.  945 

performed,  and  no  longer;  and  that  if  he  shall,  at  any  time  here- 
after, violate  or  neglect  to  fulfil  any  of  said  agreements,  he  shall 
forfeit  all  right  or  claim  under  this  contract,  and  be  liable  to  said 
party  of  the  first  part  for  damages,  and  shall  also  be  liable  to  be 
removed  from  the  said  land,  in  the  same  manner  as  is  provided 
by  law  for  the  removal  of  a  tenant  who  holds  over  after  the  ex- 
piration of  his  lease.  It  shall  be  lawful  for  the  said  party  of  the 
first  part,  at  any  time  after  the  violation  or  no'n-fulfillment  of 
any  of  the  said  agreements  on  the  part  of  the  said  party  of  the 
second  part,  to  sell  and  convey  the  land,  or  any  part  thereof,  to 
any  other  person  whomsoever;  and  the  said  party  of  the  first  part 
shall  not  be  liable  in  any  way,  or  to  any  person,  to  refund  any 
part  of  the  money  which  he  may  have  received  on  this  contract, 
or  for  any  damages  on  account  of  such  sale.  And  it  is  hereby 
expressly  understood  and  declared  that  time  is  of  the  essence  of 
this  contract,  and  that  unless  the  same  shall  in  all  respects  be 
complied  with  by  the  said  party  of  the  second  part,  at  the  re- 
spective times  and  in  the  manner  above  limited  and  declared,  that 
the  said  party  of  the  second  part  shall  lose  and  be  debarred  from 
all  rights,  remedies,  or  actions,  either  in  law  or  equity,  under  this 
contract. 

5.  This  contract  is  hereby  declared  to  be  binding  on  the  re- 
spective representatives  of  the  parties  hereto. 

In  witness  whereof,  etc. 

No.  16 

Agreement  for  the  Purchase  of  Land,  with  Provision  for  the 
Payment  of  Purchase  Money  by  Instalments,  the 
Purchaser  Becoming  Tenant  of  the  Vendor 

Agreement  made  this  day  of ,  19 ,  between 

,  of ,  party  of  the  first  part,  and ,  of , 

party  of  the  second  part. 

1.  Said  party  of  the  first  part,  in  consideration  of  the  sum  of 

dollars  to  him  duly  paid,  hereby  agrees  to  sell  unto  the 

said  party  of  the  second  part,  all  that  (description)  for  the  sum 

of dollars,  which  the  said  party  of  the  second  part  hereby 

agrees  to  pay  the  party  of  the  first  part,  as  follows :  The  sum  of 


946  AMEKICAN  LAW  HEAL  ESTATE  AGENCY. 

dollars  on  the day  of   next,  the  sum  of 

dollars  on  the day  of ,  19 . . . .,  with  interest 

on  each  instalment  from  the  date  of  these  presents,  at  the  rate  of 
per  cent,  per  annum,  until  the  sum  is  paid. 

2.  Said  party  of  the  second  part  also  agrees  to  pay  all  the 
taxes  and  assessments  that  vshall  be  taxed  or  assessed  on  said 
premises  from  the  date  hereof  until  the  said  sum  shall  be  fully 
paid  as  aforesaid. 

3.  And  the  said  party  of  the  first  part,  on  receiving  such  pay- 
ment, shall,  at  his  own  proper  cost  and  expense,  execute  and  de- 
liver to  the  said  party  of  the  second  part,  or  to  his  assigns,  a  good 
and  sufficient  deed  of  said  premises,  with  full  covenants  of  war- 
ranty. 

4.  It  is  mutually  agreed  between  the  said  parties  that  the  said 
party  of  the  second  part  shall  have  possession  of  said  premises  on 

the  day  of  ,  19....,  and  shall  keep  the  same  in 

good  condition,  as  they  are  in  at  the  date  hereof,  until  the  said 
sum  shall  be  paid  as  aforesaid. 

5.  Until  the  completion  of  the  purchase,  on  or  before  the 

day  of ,  19 ,  the  said  party  of  the  second  part 

shall  hold  the  said  premises  as  tenant  to  the  vendor,  as  a  yearly 

rent  of dollars,  payable  semi-annually,  on  the day 

of and  on  the day  of in  each  year,  the  first 

of  such  payments  to  be  made   on  the    day  of    , 

19 In  case  the  rent  paid  in  any  year  shall  exceed  

per  cent,  per  annum  upon  the  amount  of  the  purchase  money 
which  shall,  in  any  such  year,  for  the  time  being,  remain  unpaid, 
such  excess  shall  go  to  and  be  applied  in  reduction,  pro  tanio,  of 
the  principal  of  such  certain  purchase  money. 

6.  If  said  party  of  the  second  part  shall  fail  to  perform  this 
contract,  or  any  part  of  the  same,  said  party  of  the  first  part  shall 
immediately,  upon  such   failure,   have  the  right  to   declare  the 
same  void,  and  retain  whatever  may  have  been  paid  on  said  con- 
tract, and  all  improvements  that  may  have  been  made  on  said 
premises,  and  may  consider  and  treat  the  party  of  the  second  part 
as  his  tenant  holding  over  without  permission,  and  may  take  im- 
mediate possession  of  the  premises,  and  remove  the  party  of  the 
second  part  therefrom. 


POEMS.  947 

7.  And  it  is  agreed  that  the  stipulations  aforesaid  are  to  apply 
to  and  bind  the  heirs,  executors,  administrators  and  assigns  of  the 
respective  parties. 

In  witness  whereof,  etc. 

No.  17 
Sale  of  Lot  on  Weekly  or  Monthly  Payments 

This  agreement  made  this  day  of ,  19....,  by 

and  between   ,  henceforth  called  the  seller,  and    , 

henceforth  called  the  buyer,  witnesseth:    That  the  seller  had  sold 

to  the  buyer  Lot  No in  addition  to  the  city  of 

,  for dollars,  upon  the  following  terms  and  condi- 
tions, <  to-wit :  dollars  cash ;  the  balance, dollars 

per  week,  payable  on  each  Saturday  after  date,  to  the  seller's 
credit,  at  the  bank  of  ,  the  bank  crediting  pay- 
ments on  the book  furnished  by  the  seller,  until  said  bal- 
ance is  paid  down  to  a  sum  which  the  buyer  can  borrow  from  a 
building  and  loan  association,  when  the  seller  shall  convey  said 
premises  to  the  buyer  by  warranty  deed,  furnishing  abstract  of 
the  title  to  said  lot,  showing  a  good  and  merchantable  title  -in 
him,  clear  of  incumbrances,  except  taxes  and  special  assessments, 
and  the  buyer  shall  borrow  said  balance  then  owing  hereon, 
,  and  pay  the  seller  off  in  full.  Said  balance  of dol- 
lars shall  bear  interest  from  the  date  hereof,  at  the  rate  of 

per  cent,  per  annum,  and  at  the  end  of  each  year  from  date 
hereof,  the  interest  for  said  year  shall  be  deducted  from  the  pay- 
ments made  during  the  said  year,  and  the  balance  credited  on  the 
principal.  The  buyer  shall  have  possession  of  said  premises  from 
date  hereof,  and  he  agrees  to  use  the  same  well,  keep  the  house  in 
good  repair,  and  not  commit,  or  permit,  waste  to  be  committed 
thereon.  The  buyer  assumes  and  agrees  to  pay  all  taxes  on  said 

lot  maturing  in  19 ,  and  thereafter;  also,  the  balance  of  the 

street  and  sewer  assessments  thereon,  beginning  with  that  due 

,19 ,  and  any  future  ones.    The  buyer  agrees  to  keep 

the  house  on  said  lot  insured  against  loss  by  fire,  lightning  or 
windstorm,  for  its  fair  insurable  value,  in  the  seller's  name,  and 
for  the  joint  benefit  of  the  parties  hereto,  seller  to  have  posses- 


948  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

sion  of  the  policies  until  deed  is  made;  also,  the  buyer  is  to  have 
the  benefit  of  the  unexpired  insurance  now  on  said  house. 

A  default  of  the  buyer  in  making  any  of  the  payments  herein 
provided  for,  and  a  continuance  thereof,  as  to  said  weekly  pay- 
ments, for  thirty  days,  shall  give  the  seller  the  right  to  declare 
the  whole  amount  owing  him  hereunder  due  and  payable.  To  ex- 
ercise said  right  the  seller  shall  give  the  buyer  written  notice  of 
his  decision  to  so  exercise  said  option,  by  letter  mailed  to  the 
buyer,  through  the  United  States  Post  Office  at ,  or  else- 
where, addressed  to  the  buyer  at  the  premises  aforesaid,  to-wit, 

The  mailing  of  said  notice  shall  be  taken  as  the  service 

of  the  same,  the  seller  assuming  no  responsibility  for  the  delivery 
thereof.  Within  ten  days  from  the  giving  of  such  notice,  as  afore- 
said, the  buyer  shall  pay  the  balance  then  owing  the  seller  here- 
under, and  take  and  receive  the  deed  for  the  premises  on  the  con- 
ditions above  named;  or,  in  lieu  thereof,  shall  vacate  and  sur- 
render the  premises  to  the  seller  within  said  period,  in  which  case 
the  payments  made  hereon  to  said  time  shall  be  taken  and  held 
by  the  seller,  as  and  for  rent  of  the  premises,  while  so  occupied  by 
the  buyer,  and  as  liquidated  damages  for  such  default.  The  fail- 
ure of  the  seller  to  exercise  such  right,  upon  any  default  here- 
under, shall  not  bar  or  prejudice  his  right  so  to  do  on  any  future 
default,  but  said  right  shall  continue  throughout  the  life  of  this 
contract. 

Executed  by  the  parties,  in  duplicate,  the  day  and  year  first 
above  written. 

No.  18 
Agreement  for  the  Sale  and  Purchase  of  a  Dwelling-House 

This  agreement  made  this  day  of  ,  19. . . .,  be- 
tween   ,  of  ,  hereinafter  called  the  vendor,  and 

,  of  ,  hereinafter  called  the  purchaser,  witnesseth  : 

That  the  said  vendor  hereby  agrees  to  sell  to  the  purchaser, 
who  agrees  to  purchase  for  the  sum  of dollars,  in  fee  sim- 
ple, free  from  all  incunibrances  of  and  in  all  that  dwelling-house, 
with  the  stable  and  other  outplaces,  and  the  garden  and  other 

land  thereto  belonging,  situate  on  street,  in  the  town  of 

,  and  State  of ,  heretofore  in  the  occupation  of  said 


FORMS.  949 

vendor,  and  all  which  said  premises  are  set  forth  in  the  plan 
hereto  annexed,  signed  by  the  parties  hereto,  together  with  all 
the  rights,  privileges,  and  appurtenances  thereto  belonging,  which 
said  premises  are  sold  and  purchased  upon  and  subject  to  the 
following  terms  and  stipulations,  viz.: 

1.  That  the  purchaser  shall  pay  to  the  said  vendor,  upon  the 

execution  of  these  presents,  a  deposit  of dollars  on  and 

part  of  his  purchase  money,  and  pay  him  the  residue  thereof  on 
the day  of next,  when  the  purchase  shall  be  com- 
pleted. 

2.  That  the  purchaser  shall  take,  and  on  the  completion  of 
the  purchase,  pay  for  the  fixtures  and  fittings  in  the  said  dwelling- 
house,  and  building,  and  specified  in  the  schedule  hereto  annexed, 
at  the  valuation  therein  mentioned. 

3.  That  on  payment  of  the  purchase  money  and  the  value  of 
said  fixtures  and  fittings,  the  vendor  shall  execute  a  prepared  con- 
veyance of  the  property  according  to  the  stipulations  herein  con- 
tained, which  conveyance  shall  be  prepared  by  and  at  the  expense 
of  the  vendor,  unexecuted,  and  sent  to  the  said  purchaser  for  ap- 
proval   days  prior  to  the  said day  of next. 

4.  That  if,  from  any  cause  whatever,  the  purchase  shall  be  de- 
layed beyond  the day  of next,  the  purchaser  shall 

thenceforth  be  entitled  to  the  rents  and  profits  of  the  property, 

and  shall  pay  interest  at  the  rate  of per  cent,  per  annum 

on  the  purchase  money  till  the  completion  of  the  purchase. 

5.  That  if  any  obstacle  shall  arise  in  respect  to  the  title,  the 
completion  of  the  purchase  or  otherwise,  the  vendor  shall  be  at 
full  liberty  at  any  time  to  abandon  this  contract  on  returning  the 
deposit  money  only  to  the  purchaser. 

6.  That  if  the  purchaser  shall  refuse  or  neglect  to  complete 
his  purchase  at  the  time  hereby  appointed,  his   deposit  money 
shall  be  forfeited  to  the  vendor,  who  shall  be  at  full  liberty,  at 
any  time  afterward,  to  resell  the  property,  either  by  public  auc- 
tion or  private  contract,  and  the  deficiency,  if  any,  occasioned 
thereby,  together  with  all  losses,  damages  and  expenses  of  and  at- 
tending the  same,  shall  be  borne  and  paid  by  the  purchaser,  but 
any  increase  in  the  price  obtained  at  such  sale  shall  belong  to  the 
vendor. 

7.  That  time  shall  be  of  the  essence  of  the  contract. 


950  AMEEICAN  LAW  EEAL  ESTATE  AGENCY. 

8.  That  for  the  due  performance  of  this  contract  each  party 

binds  himself  unto  the  other  in  the  penal  sum  of dollars, 

which  shall  be  regarded  as  liquidated  damages  between  them,  in 
addition  to  and  irrespective  of  any  right,  liability  and  remedy 
which  either  of  them  may  have  acquired  or  be  subject  to  by  vir- 
tue hereof. 

In  witness  whereof,  etc. 

No.  19 

Agreement  to  Purchase,  Subject  to  a  Mortgage  which  the 
Purchaser  Assumes 

Agreement  made  this   day  of ,  19....,  by  and 

between ,  of ,  in  the  county  of and  State  of 

,  party  of  the  first  part,  and   ,  of  ,  in  the 

county  of and  State  of ,  party  of  the  second  part. 

1.  The  party  of  the  first  part  agrees  to  sell  and  the  party  of 
the  second  part  to  purchase,  a  certain  tract  or  parcel  of  ground 
situate  and  described  as  follows,  to-wit:  (describe). 

2.  Said  premises  are  to  be  conveyed  within days  from 

this  date,  by  a  good  and  sufficient  warranty  deed  of  the  party 
of  the  first  part,  conveying  a  good  and  clear  title  to  the  same, 
free  from  all  incumbrances,  excepting  a  mortgage  thereon  made 

by  the  said  party  of  the  first  part  to for  the  sum  of 

dollars,  dated  the day  of ,  19 ,  and  recorded  in 

Registry  of  Deeds  Book  ,  page   ,  which  said  mort- 
gage,  and  the   interest  thereon  to   the   date  of  the   conveyance 
hereby  directed  to  be  made,  the  said  party  of  the  second  part  is 
to  assume  and  pay  as  part  of  the  purchase  money  of  said  prem- 
ises. 

3.  For  such  deed  and  conveyance  the  party  of  the  second  part 

is  to  pay  to  the  party  of  the  first  part  the  further  sum  of 

dollars,  of  which dollars  have  been  paid  this  day, 

dollars  are  to  be  paid  in  cash  upon  the  delivery  of  said  deed,  and 
the  remainder  is  to  be  paid  by  the  note  of  the  party  of  the  second 

part,  dated  the  day  of next,  and  bearing  interest 

at   per  cent,  per  annum,  payable  semi-annually,  and  se- 
cured by  a  power  of  sale  mortgage,  in  the  usual  form,  upon  the 


FORMS.  951 

said  premises,  such  note  to  be  payable  to  the  order  of  the  said 
party  of  the  first  part,  in years  from  the  date  hereof. 

4.  Full  possession  of  the  said  premises  (either  free  from  all 
tenants,  or,  if  so,  subject  to  a  lease  of  same  made  by  the  party  of 

the  first  part  to  . . . . ,  for  the  term  of years  from 

19 ),  is  to  be  delivered  to  the  party  of  the  second  part  at  the 

date  of  the  delivery  of  the  deed,  the  said  premises  to  be  then  in 
the  same  condition  in  which  they  now  are,  reasonable  use  and 
wear  of  the  buildings  thereon  only  excepted. 

5.  The  deed  is  to  be  delivered  and  the  consideration  paid  at 

In  witness  whereof,  the  said  parties  hereto,  and  to  another  in- 
strument of  like  tenure,  set  their  hands  and  seals,  on  the  day  and 
year  first  above  written. 

No.  20 
Contract  of  Sale  of  Fee  Simple  or  Leasehold  of  Real  Estate 

This  agreement,  made  in  duplicate,  this day  of , 

19 ,  between ,  seller,  and ,  purchaser,  witnesseth: 

The  said  seller  hereby  agrees  to  sell  and  convey,  and  the  said 
purchaser  hereby  buys  and  agrees  to  pay  for,  the  following  prop- 
erty (give  full  description),  being  the  property  described  in  a 

certain  dated  ,  19 . . . . ,  and  recorded  among  the 

land  records  of  ,  in  book  number  ,  page  

(The  said  property  is  in  fee  simple.)  (The  said  property  is  a 
leasehold,  subject  to  a  ground  rent  of  $ per  year,  redeem- 
able after years  from  the  date  of  lease  at )  (The 

said  property  is  a  ground  rent,  which  is  redeemable  after 

years  from  the  date  of  the  lease  at )  [Strike  out  all  ex- 
cept kind  of  property  intended.] 

The  purchase  price  is  dollars  ($ ),  payable  in 

cash  on  the  day  of ,19 Of  the  above  sum 

there  has  been  paid  on  account  the  sum  of  dollars 

($ ),  which  last  mentioned  sum  is  to  be  repaid  to  the  pur- 
chaser, in  the  event  that  the  title  is  not  satisfactory;  time  is  of 
the  essence  of  this  agreement.  Possession  to  be  given  on  the 

......  day  of  ,  19 The  property  is  subject  to  the 

following  incumbrances :  Rentals,  taxes,  water-rent,  ground-rent, 

X 


952  AMERICAN  LAW  SEAL  ESTATE  AGENCY. 

and  other  charges  are  to  be  adjusted  to  the  date  of  transfer.  The 
title  is  to  be  free  of  all  incumbrances,  and  satisfactory  to  the  ex- 
aminer thereof. 

Witness  our  hands  and  seals  on  the  day  and  year  first  afore- 
said. 

(Seal) 

(Seal) 

(If  the  property  is  in  fee,  the  wife  also  should  sign.) 

No.  21 

Sale  and  Purchase,  where  Part  of  Purchase  Money  is  Paid  by 

Mortgage 

Agreement  made  the   day  of   ,  19 . . . . ,  by  and 

between   ,  of   ,  hereinafter  called  the  vendor,  and 

,  of ,  hereinafter  called  the  purchaser. 

1.  The  said  vendor  hereby  agrees  to  sell  and  convey  to  the 
said  purchaser  the  messuage  or  tenement,  and  lot  or  piece  of 
ground  thereunto  belonging,  situate  (state  where)  for  the  sum  or 

consideration  of dollars,  to  be  paid  by  the  said  purchaser 

in  way  and  manner  as  follows,  viz. : dollars  to  be  paid  by 

the  purchaser  net, payable  in years  from  the  date 

hereinafter  mentioned,  with  interest,  payable  semi-annually,  at  the 

rate  of per  cent,  per  annum,  and  secured  by  a  mortgage  of 

said  premises,  made  in  the  usual  form,  with  power  of  sale,  and 

dollars,  being  the  remainder  of  said  consideration,  to  be 

paid  upon  the  delivery  to  said  purchaser  of  a  full  and  satisfactory 
deed  of  conveyance  for  the  said  premises,  free  from  all  incum- 

brances,  and  possession  thereof,  on  or  before  the day  of 

next. 

2.  And  the  said  purchaser  hereby  agrees  to  buy  the  above  de- 
scribed premises  from  the  said  vendor  for  the  price  or  sum  above 
mentioned,  and  to  pay  and  settle  for  the  same  in  the  way  and 
manner,  and  at  the  time  above  set  forth.    The  conditions  of  this 
agreement  to  extend  to  the  heirs,  executors,  administrators  and 
assigns  of  both  contracting  parties. 

In  witness  whereof,  etc. 


FORMS.  953 


No.  22 
Agreement  for  the  Sale  and  Purchase  of  Land 

Articles  of  agreement  made  and  concluded  this day  of 

,  19 ,  by  and  between ,  of ,  in  the  State 

of ,  and ,  of ,  in  the  State  of 

First.    The  said  . . . .,  in  consideration  of  the  sum  of 

dollars  to  him  paid  by  the  said   ,  the  receipt  whereof  is 

hereby  acknowledged,  and  in  further  consideration  of  the  promise 

of  the  said herein  contained,  doth  buy,  bargain  and  agree 

to  and  with  said ,  that  he  will,  on  or  before  the day 

of next,  make  and  deliver  to  the  said a  good  and 

sufficient  deed,  with  the  usual  covenants  of  warranty,  release  of 
dower,  etc.,  all  of  that  tract  of  land  situate,  lying  and  being  in 

the  township  of ,  in  the  county  of  ,  and  State  of 

,  known  as  the ,  and  bounded  and  described  as  fol- 
lows: (describe). 

Second.    And  in  consideration  whereof,  the  said hereby 

promises  and  agrees  to  and  with  the  said that  he  will,  on 

said  deed  being  tendered  to  him  by  the  said ,  on  or  before 

the  said day  of next,  pay  to  the  said the 

further  sum  of dollars,  in  addition  to  the  payment  already 

made,  being  the  balance  of  the  purchase  money  hereby  agreed 
upon  for  the  said  tract  of  land. 

And  to  the  true  and  faithful  performance  of  all  the  agreements 

herein  contained,  on  the  part  of  the  said  ......  and ,  each 

of  them  binds  himself,  his  heirs,  executors  and  administrators,  to 
the  other,  and  his  heirs,  executors  and  administrators. 

In  testimony  whereof,  we  have  hereunto,  and  to  a  duplicate 
hereof,  set  our  hands  and  seals,  on  the  day  and  year  first  herein- 
above  written. 
Executed  and  delivered  in  the 

presence  of: 


954  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

No.  23 
Agreement  for  Sale,  with  Lease  Clause 

This  agreement  made  and  entered  into  this  day  of 

,  19....,  between  ,  party  of  the  first  part,  and 

,  party  of  the  second  part,  witnesseth: 

That  if  the  party  of  the  second  part  shall  first  make  the  pay- 
ments and  perform  the  covenants  hereinafter  mentioned  on 

part  to  be  made  and  performed,  the  said  party  of  the  first  part 
hereby  covenants  and  agrees  to  convey  to  the  said  party  of  the 
6econd  part,  in  fee  simple,  clear  of  all  incumbrances  whatever,  by 
a  good  and  sufficient  warranty  deed,  the  lot  and  piece  or  parcel 

of  ground,  situate  in  the  county  of and  city  of  , 

known  and  described  as  follows,  to-wit:  (describe). 

And  the  said  party  of  the  second  part  hereby  covenants  and 

agrees  to  pay  to  the  said  party  of  the  first  part,  the  sum  of 

dollars,  in  the  following  manner,  to-wit :  with  interest  at  the  rate 

of per  cent,  per  annum,  payable annually,  on  the 

whole  sum  remaining,  from  time  to  time,  unpaid,  and  to  pay  all 
taxes,  assessments  or  impositions  that  may  be  legally  levied  or 

imposed  upon  said  land,  subsequent  to  the  year  19 And  in 

case  of  the  failure  of  the  said  party  of  the  second  part  to  make 
either  all  the  payments,  or  any  part  thereof,  or  perform  any  of 

the  covenants  on  part  hereby  made  and  entered  into,  at 

the  time  and  in  the  manner  herein  provided,  this  contract  shall 
become  and  is  hereby  made  a  lien  on  the  above  described  tract 
from  first  party  hereto  to  second  party,  and  the  payments  herein 
provided  for  shall  be  and  are  hereby  made  a  lien  upon  said  prem- 
ises for  the  several  terms  between  the  time  of  said  payments,  and 
upon  such  failure  this  contract  shall,  at  the  option  of  the  party 
of  the  first  part,  be  forfeited  and  determined,  and  the  party  of 

the  second  part  shall  forfeit  all  payments  made  by  ,  and 

this  contract  and  such  payments  shall  be  retained  by  the  said 
party  of  the  first  part  in  full  satisfaction  and  in  liquidation  of 

damages  by sustained,  and shall  have  the  right  to 

re-enter  >and  take  possession  of  the  premises  aforesaid. 

The  second  party  shall  also  procure  insurance  on  the  building 
or  buildings  now  on  said  land,  or  that  shall  be  hereafter  erected 
on  said  land,  for  such  sum  as  the  same  can  be  insured  for,  not 


FORMS.  955 

to  exceed  the  amount  due  on  this  contract,  in  some  good  company 
or  companies,  to  be  selected  by  the  first  party,  such  insurance  to 
be  for  the  benefit  and  for  the  further  security  of  the  first  party. 

It  is  mutually  agreed,  by  and  between  the  parties  hereto,  that 
the  time  of  payments  shall  be  of  the  essence  of  this  contract,  and 
that  all  the  covenants  and  agreements  herein  contained  shall  be 
understood  to  be  obligatory  upon  the  heirs,  executors,  adminis- 
trators and  assigns  of  the  respective  parties. 

In  witness  whereof,  etc. 

No.  24 
Agreement  for  a  Conditional  Sale  of  Property 

This  agreement  made  this  day  of ,  19 ,  be- 
tween   ,  of ,  party  of  the  first  part,  and ,  of 

,  party  of  the  second  part,  witnesseth  : 

Said  party  of  the  first  part  does  hereby  demise  and  lease  unto 
the  said  party  of  the  second  part  the  following  described  premises, 
situate  in  the  county  of  ,  state  of  ,  to-wit:  (de- 
scribe), with  all  the  rights,  privileges  and  appurtenances  there- 
unto belonging,  to  have  and  to  hold  the  same  for  the  period  of 
months  (or  years)  from  the  date  hereof. 

In  consideration  of  said  demise  and  lease,  said  party  of  the 
second  part  hereby  agrees  to  pay  as  rent  for  said  premises,  in 
lawful  money  of  the  United  States,  as  follows,  viz.,  the  sum  of 
dollars,  cash  in  hand  at  the  execution  of  this  instrument,  and  the 

sum  of dollars  per  month,  on  the day  of  each  and 

every  month  thereafter  to  and  including  the  day  of 

,  19 ;  and  also,  in  addition  to  the  foregoing  sums,  to 

pay  as  rent  all  taxes  and  assessments,  including  the  taxes  for  the 
current  year,  which  may,  from  time  to  time,  be  levied  or  charged 
against  said  premises  by  the  State  of  ,  or  by  any  govern- 
mental authority  under  the  laws  of  said  State,  at  or  before  the 
time  whereof  they  shall  be  payable,  so  as  to  avoid  all  penalties 
on  account  of  non-payment  thereof.  Also,  at  all  times,  to  keep 
said  property  insured  against  loss  or  damage  from  fire,  in  some 
reliable  insurance  company,  to  be  approved  by  said  party  of  the 
first  part,  in  the  sum  of dollars,  loss  payable  to  the  party 


956  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

of  the  first  part,  as  his  interest  may  appear,  policies  for  which  in- 
surance shall  be  delivered  to  the  party  of  the  first  part. 

In  the  event  that  the  party  of  the  second  part  shall,  at  any 
time,  fail  to  pay  such  taxes  or  assessments,  when  due  and  pay- 
able, or  to  provide  and  maintain  such  insurance,  then,  in  either 
said  event,  the  party  of  the  first  part  may,  at  his  option,  either 
pay  such  taxes  or  assessments,  or  provide  such  insurance,  in  which 
case  the  amount  so  paid  by  the  party  of  the  first  part,  together 

with  interest  thereon,  at  the  rate  of per  cent,  per  annum, 

from  the  date  of  such  payment,  shall  be  payable  upon  demand,  as 
part  of  the  rent  reserved;  or,  in  the  event  of  the  failure  of  said 
party  of  the  second  part  to  make  such  payments,  or  any  of  them, 
at  the  times  and  in  the  manner  above  set  forth,  the  party  of 'the 
first  part  shall  have  the  right  to  declare  this  lease  at  an  end,  and 
to  re-enter  and  take  possession  of  said  demised  premises  and  expel 
said  party  of  the  second  part  therefrom,  without  in  any  wise 
being  a  trespasser  in  so  doing;  and  the  failure  of  the  said  party 
of  the  first  part,  at  any  time  or  times,  thus  to  re-enter  and  take 
such  possession,  shall  not  be  construed  as  a  waiver  on  his  part,  or 
to  estop  him  at  any  time  thereafter  from  so  doing,  the  cause  of 
forfeiture  then  continuing  or  upon  any  recurrence  thereof. 

Said  demised  premises  shall  be  used  and  occupied  as   

and  for  no  other  purpose  whatsoever;  and  the  said  party  of  the 
second  part  shall  exercise  reasonable  care  in  the  preservation  of 
said  demised  premises. 

At  the  expiration  of  this  lease,  whether  by  the  expiration  of 
the  full  term  thereof,  or  by  reason  of  a  forfeiture  by  the  party  of 
the  second  part,  under  the  stipulations  therein  contained,  said 
party  of  the  second  part  shall  surrender  to  said  party  of  the  first 
part  said  premises,  peaceably  and  in  good  order,  natural  wear  and 
tear  and  the  act  of  God  excepted,  and  the  occupation  of  said 
premises  thereafter  shall  give  the  party  of  the  second  part  no 
rights  therefrom  as  a  tenant. 

It  is  further  agreed,  as  a  consideration  of  this  lease,  that  the 
party  of  the  first  part  does  hereby  give  and  grant  unto  the  said 
party  of  the  second  part  at,  or  at  any  time  prior  to,  the  termina- 
tion of  this  lease,  by  lapse  of  time  or  forfeiture  thereof,  the  right 
and  option  to  purchase  said  demised  premises,  upon  the  following 
terms,  to-wit:  To  pay  to  such  party  of  the  first  part,  such  sum 


FOEMS.  957 

as  added  to  the  payments  theretofore  made,  less  such  payments 
as  shall  have  been  made  for  taxes,  assessments  and  insurance, 
whether  made  by  the  party  of  the  first  part  or  by  the  party  of  the 
second  part,  and  if  paid  by  the  party  of  the  first  part,  with  in- 
terest thereon  at per  cent,  as  equaling  the  sum  of 

dollars,  together  with  such  additional  sum  as  would  equal  interest 
at  the  rate  of  six  per  cent,  per  annum  upon  the  monthly  payments 
from  the  date  hereof  until  the  sum  shall  have  been  paid;  such 
payments  having  thus  been  made,  the  party  of  the  first  part  shall 
execute  and  deliver  to  said  party  of  the  second  part  his  warranty 
deed  for  said  premises,  upon  the  payment  to  him,  the  said  party 
of  the  first  part,  by  the  said  party  of  the  second  part,  in  cash,  the 

further  sum  of dollars ;  provided  that  said  party  of  the 

second  part  shall  have  the  right  to  divide  said  last  sum  into  five 
equal  annual  payments,  and  secure  the  payment  thereof,  of  his 
promissory  notes  therefor,  due  respectively  on  or  before  one,  two, 
three,  four  and  five  years  from  said  date,  said  notes  to  be  nego- 
tiable and  payable  to  the  order  of  the  party  of  the  first  part  at 

some  bank  in  the  city  of ,  to  bear  interest  at  the  rate  of 

per  cent,  per  annum,  payable  semi-annually,  and  payment 

thereof  to  be  secured  by  mortgage  upon  said  demised  premises. 

It  is  expressly  understood  and  agreed  that  unless,  and  until  the 
party  of  the  second  part  shall  exercise  the  option  hereby  granted 
him  to  purchase  said  demised  premises,  and  to  make  the  payments 
and  execute  the  notes  and  mortgages  requisite  to  the  exercise  of 
such  option,  his  only  estate  in  said  premises  shall  be  that  of  ten- 
ant thereof. 

And  it  is  further  agreed  that  said  party  of  the  second  part  shall 
not  sublet  said  premises,  nor  assign  this  lease  and  condition  to 
purchase,  without  the  written  consent  of  the  party  of  the  first 
part  first  had  and  obtained  and  endorsed  hereon. 

In  witness  whereof,  etc. 


958  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

No.  25 

Agreement  for  the  Sale  of  Building  Lot,  with  Option  to  Pur- 
chase Adjoining  Lots 

This  agreement  made  the  day  of  ,  19 ,  be- 
tween   ,  hereinafter  called  the  vendor,  and ,  herein- 
after called  the  purchaser. 

The  vendor  will  sell  and  the  purchaser  will  buy,  in  fee  simple 

and  unincumbered,  all  that  parcel  or  land  numbered  on 

the  plan  heretofore  annexed,  for  price  of ,  to  be  paid  for 

upon  the  tender  of  a  good  and  sufficient  deed. 

In  consideration  of  the  agreement  to  purchase  hereinabove  con- 
tained, the  purchaser  shall  have  the  option,  at  any  time  during 

the  period  of months  from  the  date  hereof,  of  purchasing 

all  or  any  of  the  lots  set  forth  on  said  plan,  in  addition  to  the  lot 
now  agreed  to  be  purchased  at  the  price  of  .......     Such  option 

shall  be  exercised  by  the  purchaser  giving  to  the  vendor  one  cal- 
endar month's  notice,  in  writing,  of  his  intention  to  purchase,  and 
specifying  the  lot  or  lots  to  be  purchased,  and  such  purchases 
shall  be  completed  at  the  office  of  the  vendor's  attorney,  upon  the 
payment  by  the  purchaser  to  the  vendor  of  the  price  for  each  lot 

of ;  provided,  that  if  the  purchaser,  having  given  notice  as 

aforesaid  of  exercising  the  said  option,  shall  fail  to  complete  the 
purchase  comprised  in  such  notice,  in  accordance  with  this  agree- 
ment, he  shall  not  be  entitled  at  any  subsequent  time  to  exercise 
such  option  in  respect  of  the  same  premises,  and  the  option  shall 
thereupon  be  determined,  without  prejudice  to  any  rights  which 
the  vendor  may  have  against  the  purchaser  by  reason  of  such  de- 
fault. It  is  expressly  agreed  that,  for  all  purposes  connected  with 
the  exercise  of  the  option  hereby  given,  time  shall  be  deemed  to 
be  of  the  essence  of  the  contract. 

The  property  is  sold,  and  will  be  conveyed  subject  to  the  re- 
strictions and  stipulations  contained  in  the  schedule  hereto  an- 
nexed, for  the  benefit  of  the  vendor's  adjoining  land,  and  the  con- 
veyance to  the  purchaser  shall  contain  such  provisions  and  cove- 
nants as  the  vendor  may  reasonably  require  for  giving  effect  to 
and  enforcing  said  restrictions  and  stipulations. 

In  witness  whereof,  etc. 


FORMS.  959 


No.  26 

Agreement  that  Purchaser  May  Retain  Part   of  Purchase 
Money  Until  a  Defect  in  the  Title  is  Removed 

Agreement  made  this  day  of ,  19 ,  between 

,  of ,  hereinafter  called  the  vendor,  and ,  of 

,  hereinafter  called  the  purchaser.  Whereas,  by  a  contract 

bearing  date  the day  of ,  19. . . .,  the  said  vendor 

agreed  to  sell  to  the  said  purchaser,  for  the  sum  of dollars, 

the  parcel  of  land  in  said  contract  described;  and  whereas,  in  the 
course  of  investigating  the  title,  it  is  found  that  there  is  an  undis- 
charged mortgage  upon  the  said  premises,  and  that  the  amount 
due  upon  said  mortgage  is  in  dispute,  so  that  it  can  not  be  imme- 
diately discharged,  but  the  said  purchaser  has  agreed  to  complete 
said  purchase  immediately,  on  being  allowed  to  retain  the  sum  of 

dollars  out  of  the  purchase  money  until  the  said  mortgage 

shall  be  satisfied  and  cancelled  of  record. 

Now,  these  presents  witness  that,  in  pursuance  of  such  arrange- 
ment, he,  the  said  purchaser,  hereby  agrees  to  pay  the  remainder 
of  said  purchase  money,  and  to  complete  the  said  purchase,  when- 
ever the  said  vendor  shall  cause  said  mortgage  to  be  discharged, 
and  until  such  time  to  pay  interest  on  the  said  sum  retained  out 
of  the  purchase  money,  at  the  rate  of per  cent,  per  annum. 

And  it  is  hereby  mutually  agreed  that,  in  case  the  said  vendor 
shall  be  unable  or  shall  neglect  to  procure  a  discharge  of  said 

mortgage  within  calendar  months  from  the  date  hereof, 

the  said  sum  of dollars  so  retained  as  aforesaid  out  of  the 

said  purchase  money  shall  be  forfeited,  and  shall  belong  to  the  said 
purchaser,  who  shall  be  at  liberty  to  retain  the  same  to  apply  to 
the  payment  of  said  mortgage,  so  far  as  required,  and  as  liqui- 
dated damages  in  respect  of  the  said  defect  of  title;  and  there- 
upon the  said  purchaser  shall  be  no  longer  liable  to  pay  or  ac- 
count for  said  sum,  but  shall  be  absolutely  discharged  therefrom, 
and  the  said  vendor  shall  be  discharged  from  all  obligation  to 
procure  a  discharge  of  said  mortgage. 

In  witness  whereof,  etc. 


960  AMERICAN  LAW  BEAL  ESTATE  AGENCY. 

No.  27 
Receipt  for  Deposit  by  Purchaser 

$..  ,,19. 


Received  of , dollars,  as  a  guaranty  of  good  faith 

accompanying  offer  of dollars,  on  terms  as  set  forth  in  a 

written  proposition  this  day  made  to  the  undersigned  Real  Estate 
Agent,  for  the  purchase  of 

This  offer  is  subject  to  owner's  approval.  If  accepted,  the 
above  amount  will  apply  as  part  of  purchase  price,  and  if  refused 
the  above  amount  will  be  refunded.  If  offer  is  accepted,  and  pur- 
chaser refuses  to  fulfil  his  part  of  said  contract,  the dol- 
lars will  be  forfeited  to  the  undersigned  agency. 


No.  28 
Agreement  to  be  Signed  by  a  Purchaser  of  Land  at  Auction 

I  hereby  acknowledge  that  I  have  this  day  purchased,  at  public 
auction,  all  that  lot  of  land  (follow  with  full  description),  for  the 

sum  of dollars,  and  have  paid  into  the  hands  of , 

auctioneer,  the  sum  of dollars,  as  a  deposit  and  in  part 

payment  of  the  said  purchase  money;  and  I  hereby  agree  to  pay 

the  remaining  portion  of  the  purchase  money  unto  ,  the 

vendor,  on  or  before  the  day  of next,  in  accord- 
ance with  the  conditions  of  the  sale. 

Witness  my  hand  and  seal  this day  of ,  19 

No.  29 

Agreement  to  be  Signed  by  an  Auctioneer  After  a  Sale  of 
Land  at  Auction 

I  hereby  acknowledge  that  has  been  this  day  declared 

by  me  the  highest  bidder  and  purchaser  of  all  that  certain  lot  of 

land  (giving  description),  at  and  for  the  sum  of dollars, 

and  that  he  has  paid  into  my  hands  the  sum  of dollars, 

as  a  deposit  and  in  part  payment  of  the  purchase  money;  and  I 


FORMS.  961 

hereby  agree  that  the  vendor, ,  shall,  in  all  respects,  fulfil 

the  conditions  of  the  sale. 

Witness  my  hand  and  seal,  this  .......  day  of ,  19 


Auctioneer. 

No.  30 
Agreement  for  Exchange  of  Properties 

An  agreement  made  this   day  of   ,  19....,  be- 
tween   ,  of ,  party  of  the  first  part,  and ,  of 

,  party  of  the  second  part. 

1.  The  said  party  of  the  first  part  shall  give,  and  the  said 
party  of  the  second  part  shall  take,  the  fee  simple  in  possession 
of  all  that  parcel  of  land  (describe  it),  with  the  appurtenances, 
free  from  any  incumbrance,  in  exchange  for  the  hereditaments 
hereinafter  agreed  to  be  given  by  the  said  party  of  the  second 
part;  and  the  said  party  of  the  second  part  shall  give,  and  the 
said  party  of  the  first  part  shall  take,  all  that  parcel  of  land 
(describe  it),  with  the  appurtenances,  free  from  any  incumbrance, 
in  exchange  for  the  hereditaments  hereinbefore  agreed  to  be  given 
by  the  said  party  of  the  first  part. 

2.  Each  party  shall,  within days  from  the  date  hereof, 

deliver  to  the  other  of  them,  or  his  solicitor,  an  unexecuted  deed 
of  the  premises  to  be  conveyed  by  him,  or  will  furnish  him  with 
other  sufficient  information  to  enable  him  to  examine  the  title  to 
such  premises. 

3.  The  said  exchange  shall  be  completed  on  the day  of 

next,  by  proper  conveyances,  to  be  respectively  prepared 

by  and  at  the  expense  of  party  by  whom  they  are  to  be  made. 

4.  Each  party  shall,  on  completion  of  the  exchange,  be  let  into 
the  possession  of  the  premises  agreed  to  be  taken  in  exchange  by 

him,  or  as  from  the  said day  of ,  19. . . .,  and  on 

or  as  from  that  day  all  taxes,  rates,  and  other  incumbrances,  shall 
be  discharged  by  the  other  party. 

In  witness  whereof,  etc. 


962  AMEKICAN  LAW  EEAL  ESTATE  AGENCY. 

No.  31 
Agreement  for  the  Exchange  of  Parcels  of  Land 

Agreement  made  this day  of  ,  19 . . . . ,  between 

,  of ,  party  of  the  first  part,  and ,  of , 

party  of  the  second  part.  Whereas  the  said  party  of  the  first 
part  is  the  owner  in  fee  simple  of  a  certain  parcel  of  land,  with 
the  buildings  thereon,  situate  in  ....  aforesaid,  bounded  and  de- 
scribed as  follows,  viz.:  (describe). 

And  whereas,  the  said  party  of  the  second  part  is  the  owner  in 

fee  simple  of  a  certain  parcel  of  land,  situate  in  said  , 

bounded  and  described  as  follows,  viz.:  (describe). 

And  whereas  the  said  parties  have  agreed  to  make  an  exchange 
by  way  of  mutual  sale  conveyances  of  their  respective  properties, 
now  it  is  agreed  as  follows: 

1.  That  the  said  party  of  the  first  part  shall,  in  consideration 
of  the  property  hereby  agreed  to  be  conveyed  by  the  said  party  of 
the  second  part  to  the  said  party  of  the  first  part,  and  of  a  sum 
of  money  to  be  paid  by  the  said  party  of  the  second  part  to  the 
said  party  of  the  first  part,  as  hereinafter  mentioned,  sell  and 
convey  to  the  said  party  of  the  second  part,  said  described  land 
of  said  party  of  the  first  part,  with  the  buildings  thereon,  and  the 
appurtenances  thereof,  in  fee  simple,  free  from  all  incumbrances. 

2.  That  the  said  party  of  the  second  part  shall,  in  considera- 
tion of  the  property  hereby  agreed  to  be  conveyed  by  the  said 
party  of  the  first  part  to  the  said  party  of  the  second  part,  sell 
and  convey  to  the  said  party  of  the  first  part,  the  said  described 
land  of  said  party  of  the  second  part,  with  the  appurtenances 
thereof,  in  fee  simple,  free  from  all  incumbrances,  and  shall  pay 
to  the  said  party  of  the  first  part  the  sum  of  money  hereinafter 
mentioned. 

3.  The  said  premises  belonging  to  the  said  party  of  the  first 
part  being  considered  to  be  of  greater  value  than  the  said  prem- 
ises belonging  to  the  said  party  of  the  second  part  by  the  sum  of 

dollars,  the  said  party  of  the  second  part  shall,  upon  the 

execution  of  said  conveyance,  pay  to  the  said  party  of  the  first 

part  the  sum  of dollars,  the  difference  in  value  of  the  said 

premises. 

4.  The  said  exchange  shall  be  completed  on  the  day 


FORMS.  963' 

of >  19 ,  at  the  office  of ,  at ,  when  each 

of  said  parties  shall,  by  good  and  proper  deeds,  convey  the  said 
premises  belonging  to  him,  unto  the  other  of  them,  free  of  all  in- 
cumbrances. 

5.  Each  of  said  parties  shall  be  entitled  to  the  possession  and 
to  the  receipt  of  the  rents  and  profits  of  the  premises  hereby 
agreed  to  be  conveyed  to  him,  from  the  .         .   day  of 

19 

6.  If  from  any  cause  whatever,  the  said  respective  convey- 
ances shall  not  be  completed  on  or  before  the  said day  of 

.-  next,  interest  at  the  rate  of per  cent,  per  annum, 

upon  the  sum  to  be  paid  for  equality  of  value  as  aforesaid,  shall 

be  paid  by  the  said  party  of  the  second  part,  from  the day 

of next,  until  the  completion  of  said  conveyance. 

In  witness  whereof,  etc. 

No.  32 

Agreement  for  the  Sale  of  Building  Lots,  the  Vendor  to 
Make  Advances 

Agreement  made  this  day  of ,  19 ,  between 

,  of   ,  hereinafter  called  the  vendor,  party  of  the 

first  part,  and ,  of ,  hereinafter  called  the  purchaser, 

party  of  the  second  part. 

1.  The  vendor  agrees  to  sell  and  the  purchaser  agrees  to  buy, 
for  the  sum  of dollars,  being  at  the  rate  of dol- 
lars for  each   of  land  comprised  in  the  parcel  of  land 

Hereinafter  described,  all  that  piece  of  land  situate  ,  con- 
taining   ,  and  set  forth  in  the  plan  hereto  annexed,  with 

the  appurtenances,  in  fee  simple,  in  possession,  free  from  all  in- 
cumbrances,  with  the  right  of  using  and  enjoying  the  streets  ad- 
Joining  the  same,  and  the  common  passage-way  shown  in  said 
plan,  and  all  outlets  thereof,  in  common  with  all  other  persons 
entitled  to  use  and  enjoy  the  same. 

2.  The  purchase  money  shall  be  paid  by  the  purchaser  to  the 

vendor  on  or  before  the  day  of ,  19 ,  at  the  office,  No. 

on street,  or  elsewhere,  as  the  vendor  may  direct, 

and  instalments  of  such  purchase  money  may  be  paid  at  any  time, 
and  the  vendor  shall  convey  to  the  purchaser,  at  any  time,  the 


964  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

lot  of  land  upon  which  any  house  shall  have  been  built,  in  the 
manner  hereinafter  provided,  upon  the  payment  of  the  above 
named  stipulated  price  of  said  land,  and  all  advances  made  by 
the  vendor  in  respect  of  the  house  built  upon  the  same.  The  pur- 
chaser shall  pay  to  the  vendor  interest,  at  the  rate  of per 

cent,  per  annum,  on  said  purchase  money,  from  the day  of 

,  19....,  and  interest  at  the  same  rate  on  all  advances 

made  by  the  vendor  to  the  purchaser,  as  herein  contemplated, 
until  the  said  purchase  shall  be  completed. 

3.  The  purchaser  shall  be  entitled  to  the  immediate  possession 
of  the  said  piece  of  land,  and  shall  bear  and  pay  all  taxes,  rates 
and  assessments  in  respect  to  the  same,  as  if  the  said  piece  of  land 
had  been  conveyed  to  him. 

4.  The  purchaser  shall  not  dig  for  or  remove  from  said  piece 
of  land,  or  any  part  thereof,  any  gravel,  sand,  clay,  or  other  sub- 
stance, beyond  the  necessary  excavations  for  the  building  to  be 
erected   thereon,    without   previous    consent,    in    writing,    of   the 
vendor. 

5.  The  purchaser  shall,  within  one  calendar  month  after  the 
execution  of  these  presents,  commence,  and  without  intermission, 

and  with  reasonable  expedition,  proceed  with  the  erection  of 

houses  on  the  said  piece  of  land,  and  shall  completely  finish,  fit 

for  habitation,  the  said  houses,  on  or  before  the   day  of 

,  19 

6.  Such  houses  shall  front  upon street  aforesaid,  and 

shall  be  erected  in  a  proper  workmanlike  manner,  in  accordance 
with  the  plans  and  elevations  to  be  first  approved  of,  in  writing, 
by  the  vendor's  architect,  and  shall  be  built  of  good  materials, 

and  the  said  houses  shall  be  set  back feet  from  said 

street. 

7.  If  the  purchaser  shall,  in  all  respects,  observe  and  perform 
his  part  of  the  agreement,  the  vendor  will  advance  to  him,  for  the 
purpose  of  assisting  him  in  the  erection  of  the  said  houses,  the 

sum  of dollars,  in  respect  of  each  house,  at  the  time  and 

in  the  sums  following,  viz. : But  it  is  hereby  agreed  that 

the  vendor  shall  not  be  required  to  make  any  advance  in  respect 
of  any  'house,  unless  such  house,  exclusive  of  the  value  of  the 
land,  shall  be  equal  in  value  to  double  the  amount  of  the  sums, 
if  any,  then  advanced  thereon,  and  of  the  sum  or  sums  so  re- 


FORMS.  965 

quired  to  be  advanced.     Application  for  each  advance  shall  be 
made  not  less  than days  before  the  same  is  payable. 

8.  The  purchaser  shall,  at  his  own  expense,  insure  the  build- 
ings to  be  erected  on  said  land,  and  any  building  materials  for 
the  time  being  thereon,  for  the  benefit  and  security  of  the  vendor, 
in  a  sum  or  sums  equal  in  amount  to  any  advances  made  by  rea- 
son of  this  agreement. 

9.  The  vendor  shall  have  a  lien  or  charge  upon  said  land  and 
all  the  buildings  for  the  time  being  erected,  or  in  the  course  of 
erection  thereon,  and  upon  all  the  building  materials,  and  other 
things,  which  shall,  for  the  time  being,  be  brought  upon  the  said 
land,  or  the  streets  and  passageways  adjoining  the  same,  as  well 
for  the  said  purchase  money  and  the  said  interest  thereon,  as  also 
for  such  sums  of  money  as  the  vendor  may  have  advanced  or  paid 
as  herein  provided. 

10.  When,  and  as  soon  as,  the  purchaser  shall  have  paid  to 
the  vendor  the  purchase  money  of  said  land,  or  any  house-lot  of 
the  same,  together  with  all  sums  of  money  advanced  or  paid  by 
the  vendor  in  respect  to  any  building  or  buildings  thereon,  by 
reason  of  this  agreement,  the  vendor  shall  execute  and  prepare  a 
conveyance  of  said  land  or  house-lot,  and  such  deed  shall  contain 
covenants  on  the  part  of  the  purchaser,  his  heirs,  executors,  ad- 
ministrators and  assigns,  with  the  vendor,  his  heirs  and  assigns, 
that  no  building  which  shall  be  erected  upon  said  piece  of  land 
shall  be  used  for  the  purpose  of  carrying  on  any  trade,  business 
or  manufacture,  or  for  any  purpose  which  may  be  or  become  a 
nuisance  or  annoyance  to  the  neighborhood,  and  that  an  area  of 

the  depth  of  feet  from   street  aforesaid  shall,  at 

all  times  hereafter,  be  left  open  and  unbuilt  upon,  except  that 

bay-windows  may  project  over  the  same  not  more  than feet 

from  the  house  to  which  they  belong,  and  also  that  the  purchaser, 
his  heirs  or  assigns,  will,  from  time  to  time,  pay  one-half  of  the 
expense  of  keeping  in  repair  so  much  of  the  passage-way  as  is 
co-extensive  with  the  said  piece  or  lot  of  land. 

11.  The  purchaser  shall  be  entitled  to  have  said  pieces  of  land 
conveyed  to  him  by  several  conveyances,  not  exceeding  the  num- 
ber of  house-lots  into  which  said  land  may  be  divided,  upon  pay- 
ment to  the  vendor  on  account  of  said  purchase  money,  of  the  sum 
of for  each of  land  to  be  comprised  in  such  con- 


966  AMERICAN  LAW  REAL  ESTATE  AGENCY. 

veyance,  with  interest  thereon  as  aforesaid,  and  the  advances  made 
by  the  vendor  in  respect  of  the  buildings  erected  on  the  land  to 
be  comprised  in  such  conveyance,  with  interest  as  aforesaid,  and 
all  sums  paid  for  insurance,  and  the  interest  due  in  respect 
thereof,  provided  that  the  purchaser  shall  not,  at  any  time,  re- 
quire a  conveyance  of  part  of  the  said  land,  under  this  clause, 
unless  at  the  time  of  such  conveyance,  he  shall  have  proceeded 

with  the  erection  of  at  least houses  on  the  land  remaining, 

and  shall  have  complied  in  all  respects  with  the  provisions  herein 
contained. 

12.  If  default  shall  be  made  by  the  purchaser  in  the  observ- 
ance and  performance  on  his  part  of  this  agreement,  in  any  par- 
ticular, and  time  shall  be  deemed  to  be  of  the  essence  of  the  con- 
tract, or  if  the  purchaser  shall  become  bankrupt,  or  make  any 
composition  with  or  any  assignment  for  the  benefit  of  his  cred- 
itors, then,  and  in  such  case,  it  shall  be  lawful  for  the  vendor  to 
re-enter  upon  said  land,  or  any  part  thereof  not  previously  con- 
veyed to  the  purchaser,  and  by  notice,  in  writing  to  be  delivered 
to  the  purchaser,  or  left  for  him  at  his  usual  and  last-known  place 
of  abode,  absolutely  to  determine  this  agreement,  so  far  as  relates 
to  such  portions  of  said  land  as  may  not  previously  have  been  con- 
veyed to  the  purchaser. 

13.  If  the  present  agreement  shall  be  determined  by  the  vendor 
under  the  preceding  clause,  so  much  of  the  land  as  shall  not  have 
been  conveyed  to  the  purchaser  by  reason  of  this  agreement,  to- 
gether with   the   buildings   thereon,    and   all   building   materials 
which,  under  the  previous  clauses  of  this  agreement,  are  provided 
to  be  used  and  applied  to  the  said  land  or  the  buildings  thereon, 
shall  immediately,  after  the  delivery  of  the  notice  to  determine 
this  agreement,  be  and  remain  the  absolute  property  of  the  vendor, 
free  and  discharged  from  all  claims  and  demands  of  the  purchaser 
in  respect  thereof,  or  otherwise,  on  account  of  this  agreement, 
and  the  purchaser  shall  thenceforth  be  free  and  discharged  from 
all  obligations  created  by  this  agreement,  and  which  then  remain 
unperformed. 

In  witness  whereof,  etc. 


FORMS.  967 

No.  33 
Agreement  for  Exchange  of  Real  Estate 

This  agreement  made  and  entered  into  this  day  of 

,  19 ,  by  and  between ,  party  of  the  first  part, 

and ,  party  of  the  second  part,  witnessefh : 

That  for  and  in  consideration  of  their  mutual  agreements  here- 
inafter stated,  the  said  parties  have  agreed  and  do  hereby  agree 
as  follows,  to- wit: 

First.  The  party  of  the  first  part  has  this  day  sold  to  the 
party  of  the  second  part  the  following  described  real  estate  (give 
full  description),  and  will,  within days  from  this  date,  de- 
liver to  the  party  of  the  second  part,  abstract  of  title  covering  all' 
of  said  land,  showing  title  clear  and  free  from  incumbrances. 

Second.  The  party  of  the  second  part  has  this  day  sold  to  the 
party  of  the  first  part  the  following  described  land  (give  full  de- 
scription), with  an  incumbrance  of  dollars,  and  one  lot 

in  the  city  of ,  with  an  incumbrance  of dollars,  and 

two  lots  in  the  city  of ,  both  free  of  incumbrances,  and 

will,  within  days,  deliver  to  the  party  of  the  first  part, 

abstract  of  title,  showing  title  free  and  clear  of  all  incumbrances, 
except  as  above  indicated. 

Third.  The  party  of  the  second  part  shall  execute  and  deliver 
to  the  party  of  the  first  part,  one  promissory  note  for  the  sum  of 

dollars,  due  in  year. .  from  the  date  of  closing 

the  deal,  bearing  interest  at  the  rate  of per  cent,  per  an- 
num, and  payable  annually,  and  will  secure  the  same  by  mortgage 
on  the  land  purchased  under  this  agreement  from  the  party  of 
the  first  part. 

Fourth.  The  party  of  the  first  part  will  assume  and  agree  to 
pay  the  mortgages  on  the  land  and  lots  purchased  under  this 
agreement  from  the  party  of  the  second  part. 

In  witness  whereof,  etc. 


968  AMERICAN  LAW  EEAL  ESTATE  AGENCY. 

No.  34 
Agreement  for  the  Sale  of  Standing  Timber 

Agreement  made  the   day  of  ,  19....,  between 

,  of ,  hereinafter  called  the  vendor,  and ,  of 

,  hereinafter  called  the  purchaser. 

The  vendor  will  sell  and  the  purchaser  will  buy  the  timber- 
trees  growing  on  a  certain  lot  of  land  situate  at  the  northeasterly 

corner  of  the  vendor's  farm,  in  the  township  of ,  in 

county,  the  said  lot  containing  about acres,  and  being  the 

same  pointed  out  by  the  vendor  to  the  purchaser.  The  purchase 

price  for  the  timber  and  trees  is dollars,  of  which  one-half 

part  shall  be  paid  on  the  signing  of  this  agreement,  and  the  bal- 
ance on  the day  of ,  19 

Such  trees  shall  be  felled  with  as  much  care  as  possible  to 
avoid  injury  to  fences  and  to  the  undergrowth  of  trees  not  cut  by 
the  purchaser.  The  purchaser  shall  make  proper  compensation  to 
the  vendor  for  all  damages  the  vendor  may  sustain  by  the  care- 
lessness or  negligence  of  the  purchaser's  workmen.  The  purchaser 
shall  not  enter  into  any  arable  fields  or  upon  any  grass  land  until 
after  the  crops  have  been  gathered;  and  the  timber  is  to  be  re- 
moved over  such  private  roads  as  the  vendor,  or  his  agent,  shall 
point  out. 

The  whole  of  the  timber  and  trees  shall  be  cut  down  before  the 

day  of ,  19 ,  and  shall  be  clear  off  the  premises 

before  the day  of ,  19. . . .,  excepting  that  the  cord- 
wood  may  remain  until  the  day  of  following ; 

everything  remaining  after  the  times  mentioned  shall  be  forfeited 
to  the  vendor. 

In  witness  whereof,  etc. 

No.  35 
Agreement  for  the  Sale  of  Crop  of  Grass 

Agreement  made  the  day  of  ,  19 between 

,  of ,  hereinafter  called  the  vendor,  and ,  of 

,  hereinafter  called  the  purchaser. 

It  is  agreed  as  follows: 

1.    The  vendor  will  sell  and  the  purchaser  will  buy  all  the 


FOEMS.  969 

standing  crop  of  grass  growing  on  the  vendor's  farm,  situate  at 

,  in  the  county  of and  State  of The  part 

of  the  farm  covered  by  mowing  grass  is  believed  and  is  hereby 
conclusively  estimated  to  contain acres. 

2.  The  price  to  be  paid  is  dollars  per  acre,  of  which 

one-half  shall  be  paid  on  the  signing  of  this  agreement,  and  the 
balance  as  soon  as  the  grass  shall  be  cut  and  before  it  is  removed, 
and  the  removal  of  the  hay  from  the  farm  shall  not  be  later  than 
the day  of ,  19 

3.  For  the  purpose  of  mowing,  making  and  carrying  away 
the  hay,  the  purchaser  shall  have  license  to  enter  upon  the  hay- 
fields  with  workmen,  machines,  wagons  or  other  vehicles,  and  all 

necessary  implements,  but  not  later  than  the  said day  of 

,  19. . . .  ;  the  purchaser  agreeing  not  to  permit  any  injury 

to  the  fences,  gates  or  trees,  and  to  make  compensation  for  any 
such  damage. 

In  witness  whereof,  etc. 

No.  36 
Agreement  for  the  Sale  of  a  Growing  Crop  of  Fruit 

Agreement  made  the  day  of  ,  19 ,  between 

,  hereinafter  called  the  vendor,  and  ,  hereinafter 

called  the  purchaser. 

The  vendor  will  sell  and  the  purchaser  will  buy  all  that  crop 
of  apples  growing  on  the  trees  of  the  vendor's  orchard,  situate  at 

,  in  the  county  of  ,  for  the  price  of  per 

bushel,  of  which  the  sum  of dollars  shall  be  paid  before 

any  part  of  the  crop  is  gathered,  and  the  purchaser  shall  not  be 
at  liberty,  without  the  consent  of  the  vendor,  to  remove  from  the 
premises  any  part  of  the  crop  not  paid  for,  until  the  purchase 
price  thereof  is  paid.  The  fruit  shall  be  gathered  when  sufficiently 
matured  for  gathering,  and  the  purchaser  and  his  workmen  shall 
have,  for  the  purpose  of  gathering  and  taking  the  fruit,  full  lib- 
erty to  enter  upon  the  said  orchard  and  trees  with  ladders  and 
other  necessary  appliances. 

In  witness  whereof,  etc. 


INDEX. 

[References  are  to  sections.] 


Abandonment  of  employment,  292,  761b,  1078d. 
Abandonment  by  purchaser  of  contract  of  purchase,  292. 

of  negotiations  a  question  for  jury,  867a,  923. 
Abatement  of  price,  315. 
Abbreviations,  18,  48. 
Abstracts  of  title.    See  TITLE. 
Acceptance  of  service,  646. 
Acceptances,  567,  614a. 
Accord  and  satisfaction,  562. 
Accounting,  329a,  404,  404a,  421a,  559,  630,  676. 
Acquiescence,  143,  450,  515a,  560,  618,  860b. 

See  also  WAIVES. 

Actions  for  commissions,  184,  210,  218,  236,  588,  630,  632a,  633a,  641a, 
649b,  650,  653a,  656b,  656c,  656d,  692a,  730a. 

for  breach  of  contract,  563. 

of  tort,  40,  79d,  414. 

by  purchaser  against  vendor,  40. 

•of  assumpsit,  629,  572. 

between  principals  and  agents,  630. 
Act  which  broker  cannot  sub-delegate,  5. 

to  dispossess,  and  what  purchaser  may  show  in  defense.  689a. 

See  also  PETITIONS.     For  DAMAGES,  see  299. 
Administrators  and  executors,  5,  34,  198,  280,  456,  557. 
Advances,  282,  290,  291,  295,  314,  565. 
Adverse  interests.    See  INTERESTS,  ADVEBSE. 

Advertising  and  advertisements,  20,  24,  30,  37,  128,  561,  605,  733a,  733,  963. 
Advice  of  third  party  immaterial,  809b. 

as  to  liability  made  by  broker  erroneous,  529. 

Afterthought,  as  to  whether  defense  was,  a  question  for  jury,  920a. 
Agency,  general  and  special,  6,  356. 

several  instances  of  special  do  not  make  a  general,  6. 

duration  of,  14. 

exclusive,  13,  22,  42,  328c,  439,  563,  897,  1084. 

termination  of  the,  15,  137,  314,  454,  1031. 

971 


972  INDEX. 

[References  are  to  sections.] 

Agency,  agreement  of,  1107. 

after  death,  single  letter  insufficient  to  establish,  46. 

contract  to  take  as  commission  excess  over  net  price  an,  82. 

exercise  of  option  revokes  contract  of,  89. 

not  affected  by  agent  taking  title  bond,  99. 

established  by  correspondence,  17,  738. 

contract  of  and  not  an  option,  1083. 

may  be  withdrawn  by  parol,  22. 

act  constituting  breach  of  contract  of,  259a. 

broker  not  entitled  to  commission  on  bonds  sold  to  his  customer 
after  end  of,  277b. 

specific  supersedes  indefinite  contract  of,  492a. 

statement  by  owner  to  broker  after  sale  not  enough  to  establish,  712d. 
Agent  or  agents.  See  also  BBOKEB. 

who  are  capable  of  becoming,  1. 

power  of  delegating  authority,  2,  987. 

inherent  power  of  becoming,  3. 

personal  acts  of  undelegatable,  4. 

acts  that  cannot  be  sub-delegated,  5,  26. 

special  and  general,  6,  356. 

who  are  deemed  brokers,  7. 

who  are  not  brokers,  8. 

without  authority  to  employ  a  broker  to  sell,  11. 

exclusive  employment  as,  13,  61. 

authority  conferred  on,  18. 

revocation  of  authority  granted  to,  22. 

how  deeds  should  be  executed  by,  58. 

principals  and,  34,  36,  51. 

of  insurance  company,  broker  obtaining  loan  from  not,  71. 

signature  of  principal  by,  74,  75,  76. 

of  owner,  when  telegraph  company  is  not,  80. 

of  seller,  broker  who  took  option  to  buy  is  not,  88. 

taking  title  bond  does  not  affect  agency,  99. 

styling  himself  agent  for  others  bound  himself,  168 

acts  governed  by  rules  applicable  to  trustees,  311. 

of  both  parties,  middleman  is  common,  578. 

when  principal  liable  for  acts  of  insane,  347a. 

distinguished  from  broker,  3a» 

option  holder  not  necessarily  an,  104a. 

broker  entitled  to  commission  for  sale  to  agent  of  another,  165a. 

of  seller  joining  with  purchaser  of  land,  latter  liable  for  profits 
made,  329a. 

owner  not  liable  to  others  his  agent  appoints,  370a. 

to  rent  and  care  for  land,  may  purchase  it,  381a. 

when  without  implied  power  to  appoint  a  sub,  394a. 


INDEX.  973 

[References  are  to  sections.] 

Agent  or  agents — Continued. 

owner   bound   by  his   representations  to  buyer   of   location   of   land, 
45  la. 

contract  between  him  and  sub  need  not  be  in  writing,  523a. 

estoppel  by  act  of,  848a. 
Agreement  to  sell,  a  mere  option,  90. 

Alabama,  contracts  for  the  sale  of  lands  must  be  in  writing,  790. 
Alterations  in  written  instruments,  55,  73,  175,  293,  314,  485,  1010,  1039, 

1111. 

Ambiguous  contracts,  49. 
Amendments,  111,  667-674,  880a. 
Apportionment,  453,  1116. 

Appraise,  broker  entitled  to  commission  on  principal's  refusing  to,  434. 
Appropriation  of  broker's  services,  24. 

of  benefits  ratifies,  24,  216. 
Approval,  contract  of  sale  subject  to  principal's,  47. 

when  silence  equivalent  to,  24. 
Arbitrarily  refusing  to  accept  lease,  197. 
Architects,  31,  770,  1027. 

Arkansas,  contract  for  sale  of  lands  must  be  in  writing,  79b. 
Assignees  and  assignments,  28,  290,  572,  745,  817. 
Assist,  sub-agent  so  employed  entitled  to  commission,  regardless  of  value 

of  service,  397b. 
Assumpsit.    See  ACTION  OP. 

Attachment,   levy   of  by   broker  defeated  commissions,   454. 
Attendance  at  public  sale,  41. 
Attorney  in  fact,  27,  76,  905. 

at  law,  18,  29,  251,  314. 

Auctioneer,  agreement  with  to  sell  need  not  be  written,  605. 
Auctions  and  auctioneers,  30,  42,  138,  305,  576,  972. 
Authority,  power  of  delegating,  2. 

involving  discretion  undelegatable,  5. 

conferred  on  brokers  and  agents,  10,  18,  239,  255. 

agent  cannot  bind  principal  by  employing  broker  to  sell  without,  11. 

revocation  of,  22,  57. 

to  two  or  more  to  do  act,  all  must  unite,  26. 

broker  cannot  effect  a  sale  without,  18,  127. 

deed  ineffectual  to  set  aside,  57. 

to  sell,  advertisement  on  land  ineffectual  to  imply,  18,  128. 

to  find  purchaser  gives  no  right  to  sell,  129. 

sale  at  $500,  after  asking  lower  terms,  without,  135. 

sale  by  broker  without  written  upheld,  140. 

power  to  do  all  things  concerning  real  estate  confers  power  to  lease,  205. 

contracts  in  excess  of,  307,  307a,  307b,  307c,  314,  392b,  40,  458,  1060. 

to  village  to  sell  bonds  includes  to  employ  broker,  281. 


974  INDEX. 

[References  are  to  sections.] 

Authority,  power  of  delegating — Continued. 

of  broker,  improvement  of  property  beyond,  324. 

broker  to  sell  cannot  license  to  cut  timber,  330. 

to  locate  and  survey,  not  power  to  sell,  339. 

of  agent  construed  to  sell,  but  not  to  convey,  337a. 

broker  to  make  written  cannot  make  oral  contract,  365. 

broker  not  entitled  to  commission  on  contract  not  conforming  with  his 
instructions,  363a. 

broker  under  oral  cannot  bind  by  written  covenant,  364. 

of  agent  presumed  from  undisputed  possession  for  years,  366. 

to  make  repairs  does  not  warrant  permanent  improvements,  372. 

to  collect  rent  cannot  employ  broker  to  sell,  381. 

sub-agent  exceeding  bars  commissions,  392. 

broker  selling  lower  than  bars  commissions,  408. 

terms  of  cannot  be  varied,  409. 

half-cash  complied  with  by  sale  for  all,  410. 

half -cash  and  remainder  on  time,  cannot  sell  for  all  cash,  410a. 

negotiations  of  broker  without  not  ratified  by  sale,  415. 

to  sell  for  a  fixed  sum  binding,  422. 

to  sell  for  specified  sum  is  for  cash  only,  422a. 

broker  entitled  to  commissions,  though  principal  paid  more  than  he 
expected,  505. 

if  revocable,  broker  finding  after  not  entitled  to  commissions,  516. 

revocation  of  entitles  sub-agent  to  commissions  on  sale  made  after,  521. 

to  sell  not  implied  by  broker  putting  advertisement  on  land,  561. 

of  broker  to  require  owner  to  furnish  abstract  of  title,  597. 

when  contract  must  be  in  writing,  without  unenforceable,  602. 
Authority,  of  broker  a  question  for  the  jury^  1019. 

of  broker  to  sell  plantation,  1124. 
Avoid  a  contract,  issue  must  be  presented  by  pleadings,  871a. 


B 

Banks,  50,  244,  328p,  449,  465. 

Belief  of  evidence,  instruction  to  jury  ignoring  erroneous,  949,   1038. 

Beneficiaries,  broker  can  not  charge  commissions  to,  442. 

Benefits,  principal  receiving  bound  by  fraud  of  agent,  315. 

principal  receiving  ratifies,  557. 
Betrayal  of  trust,  295. 
Bidders,  41,  217,  395,  441. 

Bonds,  38,  276,  277,  277a,  277b,  278,  279,  280,  281,  328  (o),  558,  574,  652. 
Books,  763. 

Boot,  exchange  for  a  certain  amount  to,  185. 
Borrower,  243,  256,  257a,  328,  566,  630,  787. 


INDEX.  975 

[References  are  to  sections.  ] 

Bound,  broker  by  first  charge  for  commissions,  and  can  not  increase,  211. 

principal  accepting  valuation  made  by  buyer,  416. 

by  election,  broker  to  look  to  purchaser  for  commissions,  425. 

each  purchaser  for  whole  commission  unless  mistake  pleaded,  579. 

owner  by  legitimate  effect  of  language  than  his  understanding  of  it 

416a. 

Breach  of  contract,  563. 
Broker.    See  also  AGENT. 

he  cannot  delegate  certain  acts  to  another,  5. 

who  is  so  termed,  7 

who  is  not  at  8. 

how  appointed,  10. 

employment  of  and  limitations,  12. 

to  be  assured  compensation  must  have  contract,  12. 

exclusive  appointment  as,  13. 

authority  conferred  upon,  18. 

acting  openly  and  buying  vendor's  property,  40. 

has  a  right  to  give  part  of  commission  to  purchaser,  41. 

owner  not  required  to  inform  of  restrictive  covenant,  43. 

not  agent  of  insurance  company  in  securing  loan,  71. 

may  be  authorized1  by  parol  to  sell  or  lease  real  estate,  79a. 

sending  telegram,,  company  not  agent  thereby,  80. 

to  secure  option,  entitled  to  reasonable  commission,  83. 

employed  to  sell,  securing  mere  option,  85. 

finding  purchaser  entitled  to  compensation,  84. 

entitled  to  commission  when  customer  exercises  option,  86. 

entitled  to  commission-,  though  principal  held  only  option,  87. 

who  took  option  to  buy,  not  agent  to  sell,  88. 

who  sold  under  an  option  not  entitled  to  commission,  92. 

to  procure  loan,  not  entitled  to  commission  for  option,  93. 

to  secure  two  options,  principal  rescinds  one,  liable  for  breach,  102. 

not  entitled  to  commission  for  unexercised  option,  101. 

not  entitled  to  commission  for  securing  part  of  options,  103. 

obtaining  price  from  owner,  a  naked  option,  104. 

given  option  acting  as  a  purchaser,  105. 

given  option,  owner  estopped  to  claim  purchaser,  107. 

effecting  a  sale  entitled  to  commission,  113. 

entitled  to  more  commission  when  price  increased,  115. 

not  entitled  to  commission  for  nominal  sale,  116. 

entitled  to  commission,  though  sale  enjoined,  118,  469. 

must  effect  a  sale  to  earn  commission,  119. 

entitled  to  commission  on  withdrawal  of  land  from  sale,  120. 

not  entitled  to  commission  when  sale  fails  by  no  fault  of  principal,  122. 

not  entitled  to  commission  for  sale  by  wrong  description,  123. 

not  entitled  to  commission  for  forced  sale  with  joint  owner,  125. 

selling  to  resell  not  guilty  of  fraud,  126. 


976  INDEX. 

[References  are  to  sections.] 

Broker — Continued. 

without  authority  cannot  effect  a  sale,  127. 

placing  advertisement  on  land  does  not  imply  right  to  sell,  128. 

authority  to  find  purchaser  none  to  make  sale,  129. 

buying  at  inadequate  price  by  fraud,  sale  set  aside,  130. 

becoming  purchaser  unknown  to  principal  sale  set  aside,  131. 

contract  to  pay  commission  on  effortless  sale  upheld,  132. 

may  be  required  to  make  sale  to  earn  commission,  133,  136. 

selling  for  less  than  authorized  not  entitled  to  commission,  134. 

selling  for  $1,500,  after  asking  lower  terms,  unauthorized,  135. 

sale  by  one  of  rival,  ends  contract  with  others,  137. 

whether  entitled  to  commission  for  both  auction  and  private  sale  a 

question  for  the  jury,  138. 

selling  property  acquired  from  principal  liable  for  profit,  139. 
authorized  to  sell  without  written  authority,  140. 
second  selling  to  client  of  first,  latter  not  entitled  to  commission,  141. 
sale  by  owner  before  sale  by  bars  commission,  142. 
acquiescence  in  disagreement  bars  commission,  143. 
selling  for  cash  on  execution  of  deed,  144. 
selling  contract  of  sale  entitled  to  commission,  145. 
to  recover  commission  for  sale  of  public  land  must  show  what,  146. 
failing   to    sell    customer,   owner    succeeding,   broker    not   entitled   to 

commission,  148. 

effecting  an  exchange  entitled  to  commission,  150. 
effecting    exchange,    though    other    property    substituted,    entitled    to 

commission,  151. 
entitled  to  commission  where  principal  receives  good  title  in  exchange, 

152. 

must  show  customer  able  to  make  exchange  to  earn  commission,  153. 
to  recover  commission  for  exchange  failing  by  defect  in  title  must  show 

good  faith,  156. 

does  not  earn  commission  by  irresponsible  customer  to  exchange,  157. 
without  employment  not  entitled  to  commission  for  exchange,  162. 
commission  paid  broker  may  be  recovered  from  party  in  default,  163. 
not  liable  for  misrepresentation  made  in  good  faith,  165. 
employed  by  opposite  party,  error  to  prevent  defendant  showing,  166. 
who  did  nothing,  owner  making  exchange,  not  entitled  to  commission,  169. 
entitled    to    commission    where    exchange    wrongfully    broken    off    by 

principal,  170. 

for  commission,  has  no  interest  or  title  in  properties  exchanged,  172. 
when  ofler  to  pay  does  not  show  employment  of,  173. 
agreement  to  wait  for  earned  commission  without  consideration,  174. 
effecting  exchange  entitled  to  commission,  though  terms  changed  by 

parties,   175. 

not  entitled  to  commission  where  exchange  defeated  by  lease,  177. 
interfering  not  entitled  to  commission  for  effecting  exchange,  178. 


INDEX.  977 

[References  are  to  sections.] 

Broker — Continued. 

not  entitled  to  commission  where  exchange  defeated  by   failure  to 

furnish  abstract  of  title,  179. 
entitled  to  commission  when  purchaser  can  give  title  to  properly  in 

exchange,  180. 

not  entitled  to  commission  for  mistake  in  describing  property,  181. 
not  entitled  to  commission  on  failure  of  conditional  agreement,  182. 
not  entitled  to  commission  where  misrepresentation  defeated  exchange, 

183. 
effecting  exchange   for   amount   to   boot,   entitled  to   commission   on 

whole  value,  185. 

entitled  to  commission  on  effecting  binding  contract  of  exchange,  186. 
entitled  to  commission  on  producing  one  willing  to  exchange,  188. 
failing  to  consummate  exchange,  proof  necessary  to  recover  commission, 

189. 

earns  commission  when  both  parties  agree  on  terms  of  exchange,  191. 
right  to  commission  not  affected  by  failure  of  one  party  to  perform,  192. 
right  to  commission  defeated  by  failure  to  secure  transfers  in  exchange, 

193. 

not  entitled  to  commission  where  party  shows  bad  faith,  195. 
value  of  services  of  in  negotiating  leases,  196. 

right  to  commission  for  negotiating  lease,  what  does  not  defeat,  197. 
to  sell  securing  contract  to  lease  does  not  earn  commission,  198. 
charge  properly  refused  that  no  leases  are  made  without,  201. 
of  lessee  secretly  securing  renewal  to  himself,  holds  as  trustee,  203. 
entitled  to  commission  for  securing  lessee,  204. 
to  earn  commission  must  negotiate  lease  his  principal  can  perform, 

204a. 

securing  tenant's  waiver  of  privilege  of  renewal  binds  principal,  208. 
employed  to  collect  rents,  not  entitled  to  commission  for  securing  lease, 

207. 

for  tenant  has  no  claim  on  lessor  for  commission,  208. 
to  secure  lessee  not  entitled  to  commission  for  option,  209. 
in  action  by  for  commission,  owner  can  show  lease  to  another,  210. 
bound  by  first  claim  for  commission  and  cannot  increase  amount,  211. 
securing  lease  for  five  years,  sale  at  second,  loses  remaining  commission, 

212. 

oral  assent  to  subletting  unavailing  where  forbidden,  213. 
contract  with  ended,  lease  by  owner,  not  entitled  to  commission,  214. 
bringing  about  a  sale  or  lease  entitled  to  commission,  215,  491. 
not  entitled  to  commission  where  sale  of  lease  frustrated  by  lessor,  216. 
not  entitled  to  commission  where  lessor  refused  to  make  lease,  216a. 
not  entitled  to  commission  where  lease  to  highest  bidder,  and  broker 

preventing,  217. 

to  secure  lease  for  eight  years,  must  do  so  to  earn  commission,  220. 
secret  understanding  of  with  tenant  does  not  affect  principal,  221. 


978  INDEX. 

[References  are  to  sections.] 

Broker — Continued. 

one  employing  to  obtain  loan  liable  for  commission,  222. 

to  be  paid  commission  from  proceeds,  not  entitled  where  loan  refused 
for  bad  title,  223. 

does  not  earn  commission  where  lender  refused  to  consummate  loan,  224. 

not  entitled  to  commission  for  securing  conditional  loan,  225. 

to  recover  commission  for  loan  must  show  on  same  terms,  226. 

held  entitled  to  commission  for  procuring  loan,  226a. 

reasonable  value  of  services  in  procuring  loan  may  be  shown,  228. 

liable  for  loss  of  loan  on  insufficient  security,  229. 

bound  to  make  good  money  lost  through  his  negligence,  230,  349. 

for  seller  obtaining  loan  to  buyer,  not  entitled  to  commission  from 
latter,  232. 

procuring  loan  for  less  accepted,  entitled  to  commission,  233,  429. 

entitled  to  commission  on  finding  lender,  234,  632d. 

barred  commission  for  not  reporting  loan,  235,  431. 

in  action  for  commission  not  necessary  to  prove  tender,  236. 

agency  in  making  loan,  237. 

release  of  judgment  by,  238. 

authority  to  provide  mortgage  for  loan  confined  to  land  designated,  239. 

entitled  to  commission  where  lender  refused  after  principal,  cured 
defect  in  title,  to  make  loan,  240. 

charging  more,  entitled  to  statutory  commission  for  loan,  241. 

entitled  to  commission  for  procuring  loan,  though  principal  refused 
to  take,  242. 

to  whom  borrower  paid  commission  his  agent,  243. 

not  agent  of  lender  by  money  in  bank  subject  to  his  check,  244. 

not  entitled  to  commission  where  owner  himself  secures  loan,  245. 

failing  to  secure  *oan,  principal  securing  from  same  party,  bars  com- 
mission, 247. 

to  examine  title  and  secure  loan,  barred  commission  on  failure  by 
defect  in  title,  248. 

losing  loan  through  wrong  dimensions  bars  commission,  249. 

error  to  grant  judgment  for  full  commission  where  loan  fails,  250. 

verdict  for  procuring  loan  set  aside,  252. 

loan  to  purchaser  on  other  property,  makes  seller's  his  agent,  254. 

agreement  as  to  commission  for  procuring  lease  question  for  jury,  253. 

to  procure  loan  not  authorized  to  collect  principal  or  interest,  255. 

held  agent  of  lender  and  not  af  borrower,  256. 

knowledge  as  to  mortgage  binding  on  principal,  258. 

selling  under  power  in  mortgage,  need  not  inform  mortgagor,  259. 

liable  for  loss  in  failing  to  record  mortgage,  260,  349. 

liable  for  loss  from  unpaid  mortgage,  261. 

not  entitled  to  charge  foreclosures  to  principal,  262. 

to  invest  money  confined  to  first  mortgages,  264. 


INDEX.  979 

[References  are  to  sections.] 

Broker — Continued. 

making  loan,  knowing  of  prior  mortgage,  principal's  subordinated 
thereto,  265. 

whether  taking  mortgage  with  wrong  description  guilty  of  negligence, 
a  question  for  the  jury,  267. 

mortgage,  taken  by  lender  bound  by  fraud  of,  268. 

payment  on  mortgage  to  seller's  broker,  did  not  bind  mortgagee,  269. 

liable  for  negligence  in  failing  to  learn  liability  under  mortgage,  270,  349. 

liable  for  loss  in  taking  mortgage  on  other  and  not  on  land  sold,  271,  349. 

securing  conditional  sale  of  mortgage,  not  consummated,  not  entitled 
to  commission,  272. 

fraud  of  in  appropriating  money  to  pay  off  mortgages  273,  314. 

failure  of  purchaser  to  execute  mortgage,  barred  commission,  274,  556. 

deprived  of  commission  when  bonds  declared  illegal,  276. 

selling  bonds  entitled  to  commission  on  procuring  buyer  on  terms  pre- 
scribed, 277. 

not  entitled  to  commission  on  sale  of  bonds  on  buyer  withdrawing,  278. 

delivering  bends  without  disclosing  principal  liable  if  void,  279. 

selling  bonds  in  good  faith  not  liable  to  trust  estate  because  sale 
illegal,  280. 

authority  to  village  to  sell  bonds,  includes  authority  to  employ,  281. 

has  lien  on  securities  in  his  hands  for  commission,  283. 

has  lien  for  fees  on  funds  in  hands  to  loan,  284. 

in  absence  of  contract  has  no  lien  on  funds  or  securities  of  principal,  285. 

where  has  lien,  it  exists  only  so  long  as  ha  holds  property,  286. 

lien  confined  to  securities  affected,  287. 

has  no  lien  for  loan  on  trust  estate,  288. 

taking  excess  for  fee,  releasing  lien  falls  on  principal,  289. 

duty  of  to  employer  and  others,  290. 

concealment  and  its  effect  upon  rights,  291. 

conduct  of,  302. 

making  contract  in  excess  of  authority  binds  himself,  307,  307b. 

failure  of  to  report  offer,  312. 

false  representations,  313. 

fraud  of  agent  against  principal,  314. 

fraud  of  agent  against  third  persons,  315. 

fraud  of  principal  against  agent,  317. 

fraud  of  third  persons  against  agent,  318. 

debatable  acts  not  constituting  fraud,  320. 

selling  his  own  property  to  principal  set  aside,  321. 

when  he  is  and  when  not  liable  for  interest,  322. 

obtaining  interest  hostile  to  principal,  323,  382. 

improvement  of  property  beyond  authority  of,  324. 

neglecting  to  place  insurance  on  property  liable,  325. 

selling  without  express  agreement,  entitled  to  commission,  328m. 

to  sell  cannot  grant  license  to  cut  timber,  330. 


980  INDEX. 

[References  are  to  sections.] 

Broker — Continued. 

authority   construed   to  contract  to   sell  but  not  to  convey,   337a. 

buying  land-warrants  liable  for  value  of  land,  338. 

not  liable  for  mutual  mistake  as  to  power,  341. 

to  sell  can  take  nothing  but  money,  342. 

has  no  right  to  receive  Mexican  money,  343. 

when  he  need  not  tell  principal  what  land  sold  for,  344. 

knowing  defect  in  principal's  title,  cannot  himself  acquire,  345. 

guilty  of  negligence  barred  commission,  346. 

contract  of  brokerage  not  set  aside  for  fraud,  348. 

departing  from  instructions,  liable,  350. 

when  not  liable  for  loss  on  forged  note,  351. 

when  not  authorized  to  collect  note,  352. 

having  note,  maker  may  pay  him,  353. 

has  no  power  to  receive  payments  on  note  before  due,  354. 

to  collect  interest,  has  no  power  to  collect  principal,  355. 

doing  all  business  for  principal  may  collect  note   356. 

debtor  should  see  that  broker  has  security,  357. 

for  revocation,  no  sale  made,  entitled  to  nominal  damages,  358. 

how  notice  to  bind  principal  must  be  given,  359. 

on  finding  customer  to  buy,  must  give  principal  notice,  360. 

to  make  a  written  cannot  make  oral  contract,  363. 

not  entitled  to  commission  for  contract  not  conformable  to  authority, 

363a. 

under  oral  authority,  cannot  bind  by  written  covenants,  364. 
entitled  to  commission  where  purchaser  postpones  purchase,  365. 
advancing  the  consideration  takes  deed  absolutely,  368. 
principal  taking  land  in  lieu  of  cash,  broker  entitled  to  commission, 

369,  376. 

when  principal  paying  one,  not  further  liable,  370. 
pool  to  divide  commission  between  brokers  bars  commission,  371. 
to  make  repairs,  has  no  power  to  make  permanent  improvements,  372. 
cannot  retain  commission  from  purchase  money,  373. 
vendor  refusing  to  sell  liable  for  commission,  374. 
vendor  refusing  to  sell,  when  broker  not  entitled  to  commission,  375. 
refused  land  for  commission,  may  take  cash,  377. 
when  not  entitled  to  commission  in  cash,  378. 
release  by  one,  left  other  entitled  to  half  of  remaining  land,  379. 
release  of  vendee  did  not  deprive  broker  of  commission,  380. 
to  collect  rent  not  authorized  to  employ  broker  to  sell,  381. 
acting  in  bad  faith,  required  to  refund  commission,  323,  382. 
receipt  by,  signed  as  agent,  binds  individually,  383. 
giving  receipt  in  name  of  principal,  purchaser  must  look  to  latter,  384, 

642b. 

giving  receipt  in  name  of  principal,  when  may  be  sued  for  money,  642c. 
when  receipt  given  in  name  of  principal  purchaser  may  recall  money,  385. 


INDEX.  981 

[References  are  to  sections.] 

Broker — Continued. 

to  collect  rent,  cannot  pay  therefrom  debt  of  principal,  386. 
to  collect  rent  must  apply  proceeds  as  directed  by  principal,  387. 
acting  in  interest  of  others,  not  entitled  to  share  in  transaction  for 

principal,  388. 
buying  property,  not  entitled  to  commission  for  its  sale,  389,  389a, 

389b,  389c. 

liable  for  fraud  of  sub-agent,  390. 

deprived  of  commission  by  concealment  of  sub-agent,  391. 
sub-agent  exceeding  authority  defeats  commission,  392. 
principal  not  liable  to  suteagent,  393. 
not  liable  for  poor  sale  by  sub-agent,  394. 
sub-agent  entitled  to  one-half  commission,  396. 
contract  with  sub-agent  binding,  when,  397. 
one  employing  liable  for  commission,  398. 
secretly  learning  price,  etc.,  does  not  earn  commission,  399. 
secretly  representing  both  parties  bars  commission,  400. 
vendor  acts  in  bad  faith  by  paying  commission  to  purchaser's  broker,  401. 
required  to  exercise  skill  of  calling,  402. 
may  be  responsible  for  sufficiency  of  security,  403. 
must  account  to  principal  for  money  received,  404. 
for  seller,  member  of  purchasing  syndicate,  bars  commission,  405. 
giving  names  of  syndicate,  when  sale  by  owner  bars  commission,  406. 
tenants  in  common  jointly  liable  for  commission,  407. 
selling  lower  than  authorized  bars  commission,  408. 
cannot  vary  terms  of  authority,  409. 

selling  for  all  cash  complies  with  authority  for  half-cash,  410. 
to  sell  for  half-cash  and  time,  cannot  sell  for  all  cash,  410 
understating  price  obtainable  liable  to  principal  for  loss,  412a. 
fraudulent  acts  of  may  give  rise  to  action  of  tort,  414. 
unauthorized  negotiations  not  ratified  by  sale  by  owner,  415. 
accepting  valuation  from  buyer  binds  principal,  416. 
presumption  after  revocation  that  he  acts  for  purchaser,  421. 
entitled  to  commission  on  quantity  contracted  for,  423,  423a 
interfering . in  another's  transaction,  424. 
agreeing  to  look  to  purchaser  for  commission,  425. 
to  purchase  not  entitled  to  commission  from  seller,  425a. 
not  entitled  to  commission  for  sale  at  less  than  fixed  price,  426. 
not  entitled  to  commission  as  contract  not  a  lease,  427. 
not   deprived  of   commission  for   immaterial   variance    in   description, 

428,  428a. 

to  procure  loan  entitled  to  commission  on  finding  lender,  430. 
negotiating  with  two,  sale  to  one  bars  commission,  432. 
not  entitled  to  commission  when  sale  void  by  statute,  433. 
entitled  to  commission  where  principal  refuses  to  appraise,  434. 
purchaser  who  knew  length  of  lot  barred  commission  of,  435. 


982  INDEX. 

[References  are  to  sections.] 

Broker — Continued. 

where  vendor  repudiates  tender  not  necessary,  430. 

unsuccessful  with  F.,  owner  selling  to  him  and  others  bars  commission, 

437. 
not  entitled  to  commission  where  party  to  execute  does  not  show  good 

faith,  438. 

unless  exclusive  not  entitled  to  commission  on  sale  by  another,  439. 
entitled  on  sale  by  owner  to  commission  on  share  of  two  tenants  in 

common,  440. 

preventing  competitive  bidding  not  entitled  to  commission,  441. 
in  not  charge  commissions  to  beneficiaries,  442. 
lerfering  with  negotiations  of  another,  444. 
iirst  who  succeeds  is  entitled  to  commission,  445. 
who  was  procuring  cause  of  sale  entitled  to  commission,    446,  447. 
effect  upon  right  to  commission  by  break  in  continuity,  447. 
effect  upon  right  to  commission  by  break  in  sequence,  448. 
not  entitled  to  commission  on  sale  by  principal  uninfluenced  by  broker, 

454. 

excess  in  price  as  compensation,  456. 
failure  to  sell,  457,  543. 
failure  to  consummate  contract  of  sale,  458. 
entitled  to  commission  in  stock  of  insurance  company,  468. 
not  entitled  to  full  commission  until  price  paid,  470. 
not  informing  principal  of  customer  defeats  commission,  471. 
knowledge  by  that  principal  owns  part  does  not  defeat  commission,  472 
litigation  by  third  parties  does  not  defeat  commission,  473. 
methods  of  earning  commission  by,  474. 
not  required  to  prepare  contract  of  purchase,  474a. 
as  middleman  may  recover  from  each  party,  475. 

not  entitled  to  commission  for  sale  of  mines  not  within  the  descrip- 
tion, 476. 

modification  not  assented  to  by  does  not  defeat  commission,  477. 
modification  in  his  presence  did  not  affect  right  to  commission,  478. 
modification  by  performing  other  services  modifies  right  to  commission. 

479. 

agreeng  to  take  stock  for  commission  can  not  recover  'in  money,  480. 
does  not  take  excess  on  net  price  to  owner,  481. 
selling  at  net  price  not  entitled  to  commission,  482. 
entitled  to  commission  on  note  for  excess,  on  default  of  vendor,  483. 
entitled  to  excess  as  commission  from  first  payment,  484. 
when  owner  changed  gross  to  net  price,  liable  for  commission,  485. 
commissions  computed  on  actual  sum  received,  486. 
commissions  not  defeated  because  nominal  is  not  the  real  purchaser, 

487. 
entitled  to  commission  where  failure  not  caused  by  his  fault,  488. 


INDEX.  983 

[References  are  to  sections.] 

Broker — Continued. 

whether  neither  principal  nor  broker  effecting  sale  knew  of  another's 
negotiations  latter  barred  commission,  489. 

entitled  to  commission  where  principal  sells  before  time  expires,  490 

reporting  offer  of  $16,000  instead  of  $15,000  did  not  deprive  of  com- 
mission, 491. 

oral  followed  by  written  contract  to  sell  land  entitled  to  commission,  492. 

entitled  to  commission  for  sale  of  four  houses,  not  entitled  to  proper' 
tionate  for  one,  493. 

entitled  to  commission  for  sale  of  lots,  not  entitled  to  same  rate  for 
large  body  of  land,  494. 

nromised  commission  for  selling  part,  entitled  to  same  rate  for  all, 
495. 

who  failed  to  sell  all  entitled  to  commission  on  sale  by  owner  of  part 
to  customer,  496. 

share  of  profits  on  sale  through  sub-agent,  497. 

commission  payable  on  sale  and  not  on  collection  of  deferred  pay- 
ments, 498.  'V  ; 

commission  due  when  contract  made  with  produced  purchaser,  499. 

entitled  to  commission  on  actual  payments  by  defaulting  vendee,  500, 
506. 

limited  to  commission  on  $1,000,  though  property  later  sold  for 
$12,500,  -500a. 

right  to  commission  not  defeated  because  to  be  paid  from  purchase 
money,  501. 

principal  liable  for  commission  on  sale  at  lower  price,  unless  fixed 
required,  502. 

where  principal  agreed  to  pay  on  receipt  of  price,  not  entitled  be- 
fore, 503. 

commission  usually  payable  on  completion  of  transaction,  604. 

entitled  to  commission  though  purchaser  pays  more  than  he  au- 
thorized, 505. 

cases  in  which  held  not  procuring  cause  of  sale,  507. 

entitled  to  commission  where  sale  frustrated  through  failure  to  par- 
tition, 508. 

partial  performance  entitled  neither  to  commission  nor  on  a  quantum 
meruit.  509. 

in  charge  of  real  estate  securing  tenant  entitled  to  recover  on  quan* 
turn  meruit,  510. 

on  principal  selling  for  less  than  agreed  price,  entitled  to  recover  on  a 
quantum  meruit,  511,  512. 

in  absence  of  express  contract  broker  procuring  purchaser  may  recover 
on  a  quantum  meruit,  513. 

in  absence  of  fixed  rate  measure  of  commission  value  of  service 
rendered,  513a. 

demand  of  $10,000  to  release  lien  defeated  claim  for  commission,  514. 


984  INDEX. 

[References  are  to  sections.] 

Broker — Continued. 

» first  entitled  to  commission  by  second's  relinquishment,  516. 
if  authority  to  secure  purchaser   revocable,   finding  after  bars  com- 
mission, 516. 
if  customer  reserves  right  to  withdraw  if  title  bad,  when  exercised 

bars  commission,  517,  534. 

unless  exclusive  rival  not  entitled  to  commission  on  sale  by  another,  518. 
and  sub-agent  similar  in  relations  to  principal  and  agent,  519. 
sub-agent  entitled  to  share  of  commission  though  he  violated  instruc- 
tions, 520. 
liable  to  sub-agent  though  property  on  sale  found  not  to  belong  to 

vendor,  520a. 
sub-agent  entitled  to  commission  for   sale   made  after   revocation  of 

authority,  521. 

sub-agent  not  entitled  to  commission  for  sale  at  reduced  price,  524. 
sub-agent  entitled  to  commission  though  he  failed  to  give  name  of 

purchaser,  525. 

selling  to  railroad  instead  of  to  syndicate,  entitled  to  commission,  526. 
entitled  to  commission  though  sale  other  than  contemplated,  527. 
right  to  commission  not  affected  by  owner's  suppositions,  528. 
erroneous  advice  as  to  liability  defeated  right  to  commission,  529. 
failing  to  name  purchaser  in  telegram  does  not  defeat  commission,  530. 
where  vendor  sought  to  vary  terms  and  purchaser  refused  to  take, 

broker  entitled  to  commission,  531. 
entitled    to    commission    on    bringing    parties    together,    though    they 

contract  on  different  terms,  532. 

on  making  sale,  defect  in  title  does  not  deprive  of  commission,  533. 
to  have  part  of  profit,  on  sale  failing  by  defect  in  title  not  entitled  to 

commission,  535. 

payment  of  commission  to,  may  depend  on  transfer  of  title,  536. 
not  entitled  to  commission  where  sale  defeated  by  supposed  defect  in 

title,  537. 
entitled    to    commission    on    producing    buyer,    whether    principal    or 

another  holds  title,  538. 

sale  defeated  by  want  of  title,  which  he  knew,  not  entitled  to  com- 
mission, 539. 
ignorance  of  contract  by  holder  of  record  title  did  not  defeat  right 

to  commission,  540. 

where  sale  failed  by  dispute  over  taxes  barred  commission,  541. 
entitled  to  commission  where  sale  failed  after  memorandum  contract 

signed,  542. 

not  entitled  to  commission  for  unavailing  efforts  to  make  a  sale,  543. 
to  entitle  to  commission  for  sale  negotiations  must  be  uninterrupted, 

544. 

undisclosed  agreement  to  divide  commission  with  purchaser  does  not 
bar  commission,  545. 


INDEX.  985 

[References  are  to  sections.] 
Broker — Continued, 

not  entitled  to  commission  until  he  has  performed  his  undertaking, 
546. 

not  entitled  to  commission  for  procuring  contract  subject  to  unau- 
thorized condition,  547. 

procuring  purchaser  for  vested   remainder  on   different  terms  barred 
commission,  548. 

does  not  earn  commission  if  contract  void  if  first  payment  fails,  549. 

variance  in  name  of  ranch  sold  did  not  bar  commission,  550. 

not  entitled  to  commission  for  contract  too  vague  to  enforce,  551. 

withdrawal  of  land  from  sale  entitled  by  contract  to  commission,  552. 

withdrawal  and  sale  by  owner  to  customer  in  good  faith  bars  commis- 
sion, 553. 

principal  paying  commission  to  broker  before  purchaser  withdrawing 
can  not   recover   amount,  554. 

entitled  to  commission  where  sale  failed  because  rights  of  two  heirs 
not  acquired,  555. 

circumstances  under  which  he  earns  commission,  557. 

circumstances  under  which  he  does  not  earn  commission,  558. 

who  acquiesced  in  reduction  of  price,  commission  computed  on  price 
received,  560. 

may  be  the  common  agent  of  both  parties,  578. 

acting  as  a  mere  middleman,  578. 

when  principal  employing  several  may  remain  neutral  as  to  claims  of,  581. 

parol  contract  binds  unnamed  principal,  583. 

to  share  in  profits  of  sales  not  a  partner,  584. 

has  right  of  action  against  defaulting  purchaser  for  lost  commission, 
588. 

has  right  of  action  against  vendee  for  price  paid  for  property,  588a. 

to  measure  land  does  not  sustain  claim  for  selling,  594. 

taking  title  to  land,  principal  may  tender  amount  and  demand  d«ed, 
595. 

when  not  necessary  to  show  vendor  had  a  clear  title,  596. 

without  authority  to  require  owner  to  furnish  abstract  of  title,  597. 

presumed  to  have  contracted  with  reference  to  usage,  599. 

where  authority  must  be  in  writing,  contract  without  unenforceable,  602. 

can  not  recover  commission  when  contract  unenforceable,  603. 

contract  by  unlicensed  unenforceable,  604. 

employment  continues  for  a  reasonable  time,  612,  613. 

principal  admitting  sales,  entitled  to  reasonable  commission,  615a. 

to  recover  commission  on  principal  refusing  purchaser  tender  not  nec- 
essary, 625. 

reasonable   time   immaterial   when   purchaser   found   while   employed, 
614. 

in  absence  of  express  agreement  reasonable  value  of  services  may  be 
recovered,  615. 


986  INDEX. 

[References  are  to  sections.) 

Broker — Continued. 

not  necessary  to  put  principal  in  default  before  suing  for  fees,  617. 

ratification  by  acceptance  of  offer  made  to,  619. 

ratification  cures  defect  in  agent's  appointment,  620. 

ratification  of  appointment  by  principal  executing  contract  with  pur- 
chaser, 621. 

ratification  of  appointment  by  acceptance  of  proceeds,  622. 

where  evidence  shows  sale  for  less  than  claimed  defendant  can  not 
object,  627. 

must  account  to  principal  for  excess  withheld,  630. 

not  liable  to  principal  for  money  refunded  to  purchaser  on  rejected 
sale,  642a. 

contract  of,  construed  as  promise  to  pay  price  if  not  sold,  1089. 
Broker  distinguished  from  agent,  3a. 

employed  to  purchase  must  secure  one  able  to  convey  free  from  in- 
cumbrances,  12. 

right  to  commission  fixed  on  sale,  and  can  not  be  postponed  without 
his  sanction,   12. 

when  counter-offer  defeated  contract  of  employment,  12. 

owner  fixing  price  and  describing  land  not  enough  to  constitute  em- 
ployment, 12. 

when  duplicity  did  not  make  him  agent  of  other  party,  12. 

mere  listing  distinguished  from  exclusive  contract,  12. 

when  contract  for  indefinite  term  not  created,  12. 

owner  not  liable  for  commission  on  sale  after  end  of  agency,  13. 

acceptance  of  exclusive  contract  and  services  supply  mutuality,  13. 

acting  on  unsigned  contract  made  exclusive  one  binding,  13. 

when  entitled  to  commission  whether  sale  by  himself  or  others,  13. 

when  not  so  entitled,  13. 

when  sale  by  owner  to  customer  barred  commission,  13. 

what  terms  fixed  the  duration  of  right  to  sell,  14. 

when  dissolution  of  firm  does  not  end  agency,  15. 

sale  at  auction  not  a  breach  of  agency  contract,  15. 

when  not  entitled  to  commission  for  sale  of  syndicate,  15. 

principal  liable  for  commission  on  sale  to  unknown  customer,  15. 

where  he  places  principal  in  touch  with  customer,  entitled  to  com- 
mission, 15. 

when  party  not  liable  on  sale  of  mill  for  commission,  17. 

contract  of  employment  created  by  letters,  17. 

special  contract  supersedes  rule  as  to  employment,  17. 

when  contract  silent,  authority  to  sell  means  for  cash,  18. 

unless    specially    authorized    seller    not    required    to    send    deed    to 
bank,  18. 

when  unauthorized  to  sell  principal  could  repudiate  act,  18. 

parties  dealing  with  bound  to  learn  limit  of  authority,  18. 


INDEX.  987 

[References  are  to  sections.] 
Broker — Continued. 

unauthorized  to  make  representations  which  confer  easements,  18. 
when  unauthorized  to  bind  principal  to  sell,  18. 
when  exceeds  conferred  authority,  18. 
authority  generally  strictly  construed,  18. 

when   principal   could  not  object   to  his   signing  contract   for  pur- 
chaser, 18. 

when  sub-agent  may  state  price  asked  is  the  lowest,  18. 
communicating  offer  to  buy  at  lower  price  did  not  revoke  agency,  22. 
when  right  to  commission  is  contingent  on  consummation  of  sale,  25. 
when  his  misrepresentation  not  chargeable  to  principal,  36. 
when  knowledge  not  acquired  while  acting  for  principal,  36. 
not  entitled  to  commission  on  sale  made  after  appointment  of  re- 
ceiver, 62a. 

entitled  to  commission  on  sale  of  land  for  fellow-broker,  76a. 
entitled  to  commission  though  customer  to  exchange  defaults,  87a. 
given  option  may  sell  for  more  and  not  account,  105a. 
to  sell  not  entitled  to  commission  after  principal  gives  option,  108a. 
to  sell  unauthorized  to  convey,  etc.,   112a. 
entitled  to  commission  for  aiding  in  making  sale,  113a. 
entitled  to  commission  for  selling  for  more  cash  than  required,  113b. 
entitled  to  commission  for  sale  to  different  person,  113c. 
to  sell  must  effect  or  secure  binding  contract,  113d. 
entitled  to  commission  on  sale  by  owner  to  customer,  142a,  399a. 
to  effect  exchange  must  act  in  good  faith,  156a. 
to  earn  commission  must  produce  one  willing  to  exchange,  157a. 
entitled  to  commission  for  exchange  with  agent  of  another,  165a. 
not   entitled   to   commission   when    party   to   exchange    irresponsible, 

165b. 

introduction  not  enough  to  earn  commission,  169a. 
barred  commission  when  he  fraudulently  altered  contract,  175a. 
entitled  to  commission  for  exchange  defeated  by  failure  to  pay  off 

lien,  177a. 
not  entitled  to  commission  where  party  to  exchange  lacked  title  to 

land,  180a. 
not  entitled  to  commission  for   exchange   where   wife   did   not   join, 

183a. 
entitled  to  commission  for   fairly   securing   agreement   for   exchange, 

186a. 

entitled  to  commission  though  contract  for  exchange  oral,  191a. 
not  entitled  to  commission  where  liquidated  damages  fixed  for  breach, 

195a. 

entitled  to  commission  from  both  parties  to  an  exchange,  195b. 
not  entitled  to  commission    for   exchange   defeated    by   flaw    in   title, 

195c. 


988  INDEX. 

[References  are  to  sections.] 

Broker — Continued. 

not  entitled  to  commission   for   sale  to  customer   procured   to   lease, 

198a. 

entitled  to  commission  on  withdrawing  as  party  to  lease,  203a. 
barred  commission  when  lease  was  not  renewed,  206a. 
entitled  to  commission  although  tenant  defaulted,  207a. 
not  entitled  to  commission  as  lease  to  another  not  renewal,  212a. 
not  entitled  to  commission  where  owner  and  tenant  made  lease,  214a. 
not  entitled  to  commission  where  building  burnt  before  lease  signed, 

216b. 

entitled  to  commission  where  lease  failed,  husband  not  signing,  216c. 
not  entitled  to  commission  where  lessee  failed  to  give  security,  216d. 
entitled  to  commission  on  furnishing  satisfactory  tenant,  22  la. 
entitled  to  commission  though  co-lessee  joined  in  making,   221b. 
entitled  to  commission  on    acceptance    of    lease    by    owner's    lawyer, 

221c. 

entitled  to  commission  though  lease  obtained  in  violation  of  instruc- 
tions, 22  Id. 
not  entitled  to  any  part  of  commission  paid  other  broker  for  lease. 

221e. 

not  entitled  to  commission  for  irresponsible  lessee,  221  f. 
required  to  supply  loan  in  reasonable  time  after  abstract  furnished, 

228a. 

entitled  to  commission  for  procuring  loan,  232a. 
not  entitled  to  commission  for  loan  defeated  by  misrepresentation  of 

borrower,  249a. 

to  procure  loan  may  purchase  the  land  at  mortgage  sale,  255a. 
entitled  to  commission  for  casual  connection  with  sale,  256a. 
barred  commission  by  failure  of  borrower  to  raise  money  to  secure 

loan,  257a. 

first  of  several  to  secure  loan  entitled  to  commission,  257b. 
refusal  of  owner  to  fix  date  of  public  sale  not  breach  of  employment 

contract,  2f>9b. 
liable  in  damages  for  assuring  responsibility  of  irresponsible  lessee, 

271a, 
sale  of  land  by  mortgagee  not  withdrawal  contemplated  by  contract, 

274a. 

when  mortgage  should  not  be  added  to  increase  commission,  275a. 
who  ceased  efforts  not  entitled  to  commission  on  sale  of  bonds  by 

another,  277a. 
not  entitled  to  commission  on  bonds  sold  to  customer  after  agency 

ended,  277b. 

entitled  only  to  advances  when  sale  made  by  owner's  manager,  282a. 
required  to  surrender  collateral  on  revocation  of  authority,  283a. 


INDEX.  989 

X 

[References  are  to  sections.] 

Broker — Continued. 

denied  right  to  assert  lien  for  commission  on  exchange  rescinded  for 
fraud,  284a. 

when  lien  on  purchaser's  interest  not  enforceable,  287b. 

what  he  must  show  to  recover  for  owner's  bad  faith,  313. 

to  procure  loan  unauthorized  to  transfer  principal's  note  and  mort- 
gage, 337c. 

entitled  to  commission  on  land  sold  through  mistake  of  owner,  341a. 

not  liable  to  third  parties  for  acts  in  representative  capacity,  34  Ib. 

may  make  oral  contracts  between  themselves,  37 la,  583a. 

receipt  for  purchase  money  bound  owner,  385a. 

three  brothers  employing  liable  for  commission,  407a. 

owner  not  bound  to  accept  customer  at  less  price  than  stipulated, 
409a. 

to  sell  has  no  power  to  bind  principal  to  sell  and  convey,  418a. 

entitled  to  commission  on  sale  of  lands  other  than  those  listed,  423b. 

right  to  commission  predicated  on  contractual  relations,  423c. 

owner  selling  for  less  to  customer  liable  for  commission,  426a. 

accepting  change  of  sale  contract  to  option  did  not  bind  principal, 
427a. 

employment  contract  void  where  made  void  elsewhere,  433a. 

law  cited  where  employment  contract  void  after  one  year,  433b. 

contract  with  printed  signature  upheld  because  acted  upon,  433c. 

entitled  to  payment  of  commission  as  collections  made,  440a. 

entitled  to  commission  on  furnishing  name  of  prospective  purchaser 
to  owner,  450a. 

not  entitled  to  commission  on  unfinished  negotiations,  458a, 

not  performing  contract  producing  one  to  buy  asking  for  abstract, 
476a. 

when  told  of  proposed  purchaser  owner  may  them  raise  price,  477a. 

where  owner  must  satisfy  right  to  commission  in  one  of  two  meth- 
ods, 479a. 

not  entitled  to  commission  when  payable  by  purchaser  who  de- 
faulted, 483a. 

direct  sale  by  owner  to  unknown  customer  defeats  commission,  489a. 

parol  contract  can  not  take  property  out  of  hands  holding  under 
written  one,  492b. 

specific  written  supersedes  ordinary  rule  as  to  payment  of  commis- 
sion, 492c. 

entitled  to  commission  for  sale  of  house  on  installments,  493a. 

employed  to  sell  entire  tract  must  do  so  to  earn  commission,  496a. 

entitled  to  commission  on  owner  wrongfully  terminating  contract  to 
sell,  496b. 

selling  in  different  acreage  portions  from  that  prescribed  barred 
commission,  496c. 


990  INDEX. 

[References  are  to  sections.] 

Broker — Continued. 

entitled  to  commission  when  three-fourths  of  collections  enough  to  pay 

them,  496d. 

entitled  to  share  of  profits  on  resale  of  land  purchased,  497a. 
agreement  to  wait  for  commission  until  owner  sold  farm  limited  to 

a  reasonable  time,  498a. 
on  owner  refusing  to  convey  liable  for  commission,  though  date  of 

settlement  time  fixed,  499a. 

barred  commission  when  lease  not  executed,  499d. 
owner  not  liable   on  his   breach  when   commission  payable  by   pur- 
chaser, 499e. 

guilty  of  misrepresentations  defeating  sale  barred  commission,  499f. 
entitled  to  commission  although  contract  contemplated  another  to 

follow,  499g. 
on  breach,  commission  due,  although  contract  provided  for  payment  as 

purchaser  paid,  499h. 
not  entitled  to    commission    where    contract    differed    as   to   deferred 

payments,  503a. 

procuring  cause  of  sale  entitled  to  commission,  507a. 
owner  can  counterclaim  for  expenses  of  suit  caused  by  misrepresen- 
tations, 514a. 

owner  accepting  purchaser  waived  showing  of  financial  ability,  515b. 
ordinarily  must  prove  financial  ability  of  purchaser,  515c. 
to  recover   commission   must   show   variance  was   waived   by   owner, 

515d. 

on  waiving  his  rights  not  entitled  to  commission,  515e. 
on  breach    of   contract   to    exchange   can    not    recover    of   wrongdoer 

commission  to  be  paid  by  other  party,  517a. 

entitled  to  commission  though  he  did  not  disclose  buyer's  name,  530a. 
contracting  for  commission  entitled  to  same  rate  on  less  price,  532a. 
entitled  to  commission  on  breach  by  vendor  although  postponed  till 

title  passed,  536a. 
acquiring    interest    in    purchase    and    contracting    beyond    authority, 

same  void,  549a. 
owner  allowed  withheld  money,  barred  recovery  of  commission  paid, 

554a. 
acquiring  interest  adverse  to  owner  forfeits  commission  and  gains, 

578a. 
not  meeting  earlier  demands  entitled  to  share  profits  with   others, 

584a. 

entitled  to  commission  on  corporation  acquiring  title  to  land,  596a. 
•when  employed  to  purchase,  in  absence  of  binding  contract,  owner 

must  have  good  title  to  entitle  to  commission,  596b. 
postal  card  insufficient  as  contract  for  commission,  601a. 
entitled  to  commission  when   owner   and   customer  reach   agreement, 

602b. 


INDEX.  991 

[References  are  to  sections.] 

Broker — Continued. 

entitled  to  commission  on  contract  held  to  sell  and  not  of  agency, 
602c. 

entitled  to  commission  on  contract  signed  by  all  tenants  in  common, 
602d. 

contract  of,  as  well  as  middleman,  must  be  in  writing,  602d. 

contract  requiring  owner  to  designate  tracts  to  be  sold  meant  in  a 
reasonable  time,  612b. 

owner  bound  for  a  reasonable  time  to  find  a  purchaser,  612c. 

contract  of  employment  in  March  not  ended  in  August,  612d. 

when  six  months  not  unreasonable  delay  in  accepting  offer,  614a. 

when  knowledge  of  withheld  from  purchaser  did  not  bind  latter,  618b. 

sale  by  owner's  son  barred  commission,  624a. 

in  absence  of  agreement,  could  not  enforce  division  of  commission, 
632c. 

action  for  breach  of  contract  need  not  allege  fraud,  641a. 

failure  to  state  performance  of  contract  no  cause  of  action,  649b. 

petition  against  for  fraud  in  exchange  of  land,  656b. 

owner  rendering  himself  unable  to  perform  no  defense  to  action  for 
commission,  692a. 

denying  purchaser's  responsibility  no  defense  to  action  for  commis- 
sions, 694b. 

no  defense  to  action  for  commission  that  purchaser's  name  was  not 
given,  69  5b. 

commission  due  on  consummation  of  sale,  when  not  a  defense  to 
owner,  699a. 

contract  of  employment  by  implication,  712b. 

must  advise  principal  on  finding  a  purchaser,  712c. 

statement  by  vendor  after  sale  insufficient  to  establish  agency,  712d. 

acting  for  another  in  purchasing  property  confers  no  right  to  com- 
mission from  vendor,  712e. 

burden  of  showing  why  contract  failed  not  on,  715a. 

to  find  a  purchaser  need  not  show  he  induced  purchase,  716a. 

to  reserve  mineral  rights  must  show  purchaser  so  understood,  719b. 

in  suit  for  commission  written  opinion  to  show  defective  title  ad- 
missible, 730a. 

evidence  admissible  to  show  contract  for  compensation,  749b. 

not  sufficient  to  show  his  but  one  of  chain  of  causes,  822a. 

must  prove  contract  as  pleaded,  833d. 

failure  of  minds  to  meet  in  fixing  commissions,  838b. 

defendant  estopped  to  deny  authority  of,  849a. 

estopped  to  claim  benefit  to  party  he  did  not  represent,  860a. 

waiver  of  commission  in  hope  of  future  favors,  860b. 

oral  promise  to  make  contract  will  not  estop  right  to  commission, 
861*. 


992  INDEX. 

[References  are  to  sections.] 

Brokerage,  equivalent  to  compensation  for  services,  8a. 

in  Illinois  corporation  not  authorized  to  do  business  of  real  estate,  38. 

contract  an  option,  and  not  one  of,  85a. 

contract  held  an  option  and  also  of,  HOa. 
Building  material,  builder's  contract,  builder's  loan,  282. 

restriction:  sale  subject  to,  24. 

Burden  of  proof,  examples  of,  51,  57,  314,  321,  464,  705-728d. 
Business,  broker  can  not  require  his  principal  to  go  to  place  of,  40,  41. 

c 

California,  contract  with  broker  to  sell  land  must  be  in  writing,  590. 

contract  for  the  sale  of  lands  must  be  in  writing,  79b. 
Canal,  erroneous  description  of  land  adjoining,  59. 
Cancellation  of  contract,  22,  292,  314,  462,  454,  482,  986a. 

of  deed  of  trust,  57,  572,  248a,  255b. 

Care,  instruction  that  broker  should  exercise  greatest,  962. 
Cash,  18,  41,  121,  144,  292,  314,  328g,  422,  422a,  422b,  464,  570,  626. 
Cashier,  328p,  865. 
Caveat  emptor,  52,  315. 
Changes  made  in  contracts,  55,  175a. 
Checks,  vendor  not  required  to  accept  in  payment  for  land,  420b. 

purchaser  could  not  defeat  broker's  right  to  collection  of,  25. 

when  a  sufficient  deposit,  297. 

in  full  of  demands  that  was  not  an  accord  and  satisfaction,  562. 

dismissal  of  action  against  drawer  of  not  error,  863. 
Church  property,  10,  446. 

Circumstances  to  show  broker  agent  of  lender,  256. 
Clandestinely  representing  opposite  party,  290. 
Clerks,  301. 

Cloud  on  title  justified  purchaser  not  to  complete  sale,  514. 
Cloud  on  title  by  default  of  purchaser,  556. 
Co-agent,  when  not  bound  by  option,  24,  35,  98. 

Collateral,  broker  required  to  surrender  on  revocation  of  authority,  283a. 
Collusion,    296. 

Colorado,  contract  for  sale  of  lands  must  be  in  writing,  79b. 
Commissions  and  compensation  of  agents  and  brokers,  Pt.  4,  Sec.  423-558. 
Commissions,  when  earned. 

under  exclusive  right,  when  sale  by  owner,  only  when  so  provided,  13. 

when  purchaser  procured  before  revocation,  15. 

upon  ratification  of  unauthorized  acts,  24. 

on  sale  of  contract  for  sale  of  real  estate,  28,  145. 

on  sale  of  lots  by  partnership,  37. 

on  acting  openly  and  buying  vendor's  property,  40. 

although  he  gives  part  to  customer,  41. 


INDEX.  993 

[References  are  to  sections.] 

Commissions,  when  earned — Continued. 

on  furnishing  purchaser  as  requested  by  letter,  42. 

on  furnishing  purchaser,  although  contract  ambiguous,  49. 

on  selling  land  for  bank,  50. 

on  sale  by  broker  before  change  made  by  seller,  55. 

on  sale  of  interest  of  tenant  in  common,  64. 

on  sale  on  indirect  information  from  broker,  69a. 

on  securing  option,  83. 

finding  acceptable  purchaser,  84. 

on  customer  exercising  option,  86,  96. 

on  making  sale,  although  principal  held  only  option,  87. 

on  effecting  sale  of  land,  113. 

when  amount  of  sale  increased  entitled  to  more,  115. 

although  sale  enjoined,   118,  469. 

under  contract  entitled  on  withdrawal  of  land  from  sale,   120. 

allowed  recovery  on  effortless  sale,  132. 

on  effecting  an  exchange  of  lands,  150,  152. 

on  effecting  an  exchange  although  other  property  substituted,   151. 

when  exchange  wrongfully  broken   off  by   principal,    170. 

on  effecting  exchange  of  lands,  though  terms  changed  by  parties,  175. 

for  effecting  exchange  under  severable  contract,  176. 

for  exchange  when  purchaser  could  give  title  to  property  offered  in 

exchange,   180. 
for  exchange   for   amount  to   boot,   entitled   to   commission   on   whole 

value,  185. 

on  effecting  binding  contract  of  exchange,  186. 
on  producing  customer  willing  to  exchange,  188. 
when  both  parties  agree  on  terms  of  exchange  of  lands,  191. 
although  one  party  to  exchange  failed  to  perform,  192. 
for  lease,  with  privilege  of  purchase,  200. 
for  securing  a  lessee,  204. 
for  bringing  about  a  sale  or  lease,  215,  491. 
for  procuring  a  loan,  226a,  632d. 

for  procuring  a  loan  for  a  less  amount  which  is  accepted,  233,  429. 
on  finding  a  lender,  234,  430. 
where  lender  refused  after  principal  cured  defect  in  title  to  make  the 

loan,  240. 

charging  more,  entitled  to  statutory  fee,  241. 
for  procuring  loan,  though  principal  refused  to  take,  242. 
on  securing  buyer  for  bonds,  277. 

on  openly  and  in  good  faith  purchasing  principal's  property,  290. 
for   finding  purchaser   though   principal   previously   but   in   bad   faith 

sold  to  another,  302. 

on  procuring  purchaser  on  owner's  terms,  313. 
although  purchaser  postpones  purchase,  3(35. 
although  principal  takes  land  in  lieu  of  cash,  369,  376. 


994  INDEX. 

[References  are  to  sections.] 

Commissions,  when  earned — Continued. 
although  vendor  refuses  to  sell,  374. 
refused  land  for  commission  may  take  cash,  377. 
release  by  one  left  other  entitled  to  half  of  remaining  land,  379. 
although  owner  refused  to  convey,  374a. 
release  of  vendee  by  vendor  did  not  affect,  380. 
sub-agent  entitled  to  one-half  commissions,  396. 
entitled  to  commission  on  quantity  contracted  for,  423,  423a. 
computed  on  actual  price  received,  560. 

notwithstanding  immaterial  variance  in  description,  428,  428a. 
where  principal  refuses  to  appraise,  434. 
on  sale  by  owner  on  share  of  two  tenants  in  common,  440. 
first  broker  who  succeeds  entitled  to,  445. 
broker  who  was  procuring  cause  of  sale  entitled  to,  446. 
entitled  to  in  stock  of  insurance  company,  468. 

on  forfeited  payments  made  by  defaulting  purchaser,  462,  500,  506. 
not  entitled  to  full  commission  until  price  paid,  470. 
as  middleman  may  recover  from  each  principal,  475. 
modification  in  broker's  presence  did  not  affect  right  to,  478. 
in  some  jurisdictions  on  sale  at  net  price,  482. 
on  sale  at  net  price  and  note  for  excess  to  broker,  and  default  by 

vendor,  483. 

although  vendor  changed  gross  to  net  price,  485. 
where  failure  of  sale  not  caused  by  his  fault,  488. 
where  principal  sold  before  time  expired,  490. 
where  oral  was  followed  by  written  contract  to  sell  land,  492. 
on  sale  of  part  by  owner  to  customer,  496. 
when  contract  of  exchange  executed,  499a. 
when  actual  transfer  made,  499b. 

where  sale  frustrated  through  failure  to  partition,  508. 
•  first  entitled  by  second's  relinquishment,  515. 
sub-agent  entitled  to  share  commissions,  523. 
sub-agent  entitled  to  commission  though  he  failed  to  give  the  name 

of  the  purchaser,  525. 

sale  to  railroad  instead  of  to  syndicate  did  not  deprive  of,  526. 
although  sale  other  than  contemplated,  527. 
not  affected  by  owner's  suppositions,  528. 

when  vendor  sought  to  vary  terms  and  purchaser  refused  to  take,  531. 
on  bringing  parties  together  though  they  contract  on  different  terms,  532. 
not  affected  by  defect  in  owner's  title,  533. 

on  producing  buyer,  whether  principal  or  another  holds  the  title,  538. 
although  holder  of  record  title  ignorant  of  contract,  540. 
where  sale  failed  after  memorandum  contract  signed,  542. 
not   affected   by   undisclosed    agreement   to    divide    commissions   with. 

purchaser,  545. 
not  affected  by  variance  in  name  of  ranch  sold,  550. 


INDEX.  995 

[References  are  to  sections.] 

Commissions,  when  earned — Continued. 
on  withdrawing  land  from  sale,  552. 

where  sale  failed  because  rights  of  two  heirs  were  not  acquired,  555. 
circumstances  generally  entitling  to,  557. 
for   purchaser   brought  through   advertisement,   561. 
although  agreed  to  divide  with  third  persons,  695a. 
on  sale  by  owner  without  notice  of  revocation,  142a,  1110. 
on  sale  for  fellow-broker,  76b. 
on  option  after  death  of  owner,  85b. 
on  exchange,  though  customer  defaults,  87a. 
on  owner  giving  option,  89a. 
on  aiding  in  making  sale,  113a. 

on  sale  where  buyer  paid  more  cash  than  required,  113b. 
on  sale  to  a  different  person,  113c. 
broker  must  effect  sale  or  binding  contract,  113d. 
on  transfer  of  undivided  interest  to  joint  owner,  125a. 
on  sale  by  owner  to  broker's  customer,  142b,  399a,  426a. 
for  exchange  with  person  purporting  to  be  agent  of  another,  165a. 
for  exchange  defeated  by  failure  to  pay  off  liens,  177a. 
for  fairly  secured  agreement  to  exchange,  186a. 
for  agreement  to  exchange  though  not  in  writing,  191a. 
on  exchange  may  recover  from  both  parties,  195b. 
for  procuring  lease,  203a. 

for  procuring  lease,  though  tenant  defaulted,  207a, 
for  lease  which  failed,  husband  not  signing,  216c. 
on  furnishing  satisfactory  tenant,  221a. 
when  procured  lessee  signed  with  co-lessees,  221b. 
on  acceptance  of  lease  by  owner's  lawyer,  221c. 
on  lease  though  secured  in  violation  of  instructions,  221d. 
on  securing  loan,  232a. 
on  casual  connection  with  the  sale,  256a. 
for  first  of  several  brokers  to  secure  loan,  257b. 
for  land  sold  through  mistake  of  owner,  341a. 
by  sub-agent  to  stipulated  share,  396a. 
by  sub-agent  to  half  commission  on  option  and  sale,  397ft. 
by  sub-agent  when  employed  to  assist,  397b. 
for  sale  of  lands  other  than  those  listed,  423b. 
on  sale  proportioned  as  payments  collected,  440a. 
on  sale  of  house  on  installments,  493a. 
when  three-fourths  of  collections  enough  to  pay,  496d. 
and  payable  in  reasonable  time,  though  to  be  when  owner  sold  farm, 

498a. 
on    owner  refusing  to  convey,  though  date  of  settlement  time  fixed, 

499c. 


996  INDEX. 

[References  are  to  sections.] 

Commissions,  when  earned — Continued. 

although  agreement  contemplated  another  contract,  499g. 

on  breach,  though  to  be  paid  as  buyers  paid,  499h. 

where  broker  procuring  cause  of  sale,  507a. 

entitled  without  disclosing  buyer's  name,  530a. 

on  breach   by   vendor,    though    payment   postponed    till   title    passed, 

536a. 

when  owner  and  customer  reach  an  agreement,  602b. 
on  contract  held  one  of  sale  and  not  of  agency,  602c. 
on  contract  signed  by  all  tenants  in  common,  602d. 
Commissions,  when  not  earned. 

under   exclusive   right  on  sale  by  another,   when  not  so  provided  in 
contract,  13. 

obtaining  price  of  land  from  owner  insufficient,   17,  70. 

acting  under  authority  from  one  executor  only,  34. 

concealing  name  of  real  and  putting  forward  fictitious  purchaser,  41. 

where  owner  forced  to  join  joint  owner  in  sale,  42,  125. 

for  contingent  sale  which  failed,  54. 

where  counter-proposition  not   an  acceptance,  56. 

when  vendor  refused  to  give  warranty  deed,  57. 

indirect  acts  of  broker  ineffectual,  69. 

securing  a  mere  option  instead  of  a  sale,  85. 

for  sale  under  an  option,  92. 

to  procure  loan,  not  entitled  for  option,  93. 

for  options  withdrawn  before  contract,  95. 

for  unexercised  option,  101. 

for  securing  only  part  of  options,  103. 

for  a  nominal  sale,  116. 

when  failure  caused  by  no  fault  of  principal,  122. 

for  sale  by  wrong  description,   123,   181. 

selling  below  authorized  price,   134. 

second  selling  to  client  of  first,  latter  not  entitled,  14L 

sale  by  owner  before  that  by  broker,  142. 

acquiescence  by  broker  in  disagreement,   143. 

effecting  exchange  with  irresponsible  customer,  157. 

effecting  an  exchange  without  employment,  162. 

broker  did  nothing,  owner  making  exchange,  169. 

exchange   defeated  by  existence  of  lease,   177. 

exchange  defeated  by  failure  to  furnish  abstract  of  title,  179. 

effecting  exchange  by  interfering,   178. 

on  failure  of  conditional  agreement,   182. 

where  misrepresentation  defeated  exchange,  183. 

failure  of  exchange  by  reason  of  encroachments,  187. 

failure  to  secure  transfers  in  exchange,  193. 

where  party  to  exchange  shows  bad  faith,   195. 

broker  to  sell  securing  one  willing  to  lease,  198. 


INDEX.  997 

[References  are  to  sections.] 

Commissions,  when  not  earned — Continued. 

for  securing  lease,  when  employed  to  collect  rents,  207. 
broker  for  tenant  has  no  claim  on  lessor,  208. 
to  secure  lessee  not  entitled  for  option,  209. 

securing  lease  for  five  years,  sale  at  second,  loses  remaining  commis- 
sion. 212. 

after  revocation  on  lease  to  customer  by  owner,  214. 
where  sale  of  lease  defeated  by  lessor's  refusing  to  assign,  216. 
for  preventing  lease  to  highest  bidder,  217. 
when  payable  from  proceeds,  and  loan  refused  for  bad  title,  223. 
where  lender  refused  to  consummate  loan,  224. 
for  securing  conditional  loan,  225. 

loan  by  seller  to  buyer,  latter  not  liable  to  former's  broker,  232. 
for  failure  to  report  loan,  235,  431. 
where  owner  himself  procures  loan,  245. 

broker  failing  to  secure  loan,  and  owner  securing  from  same  party,  247. 
broker  to  examine  title  and  secure  loan,  on  failure  by  defect  in  title,  248. 
losing  loan  through  wrong  dimensions,  249. 
conditional  sale  of  mortgage  not  consummated,  272. 
on  bonds  being  declared  illegal,  276. 
on  buyer  withdrawing  from  sale  of  bonds,  278. 
for  concealing  important  information  from  principal,  291. 
making  contract  in  excess  of  authority,  307c. 
sale  by  owner  after  abandonment  by  broker,  292. 
for  sham  sale  through  collusion,  296. 
where  broker  really  represented  opposing  party,  295. 
where  sale  deceitfully  made,  298. 

where  broker  acts  fraudulently  with  his  principal,  314. 
when  broker  is  guilty  of  negligence,  346. 
when  brokers  make  pool  to  divide  commission,  371. 
on  vendor  refusing  to  sell,  in  absence  of  custom  to  contrary,  378. 
buying  property  not  entitled  on  its  sale,  389,  389a,  389b,  389«. 
by  wrongful  concealment  by  sub-agent,  391. 
by  sub-agent  exceeding  his  authority,  392. 
secretly  learning  price  and  sending  buyer,  399. 
secretly  representing  both  parties,  400. 
broker  member  of  purchasing  syndicate,  405. 
sale  by  owner  before  syndicate  formed,  406. 
selling  at  lower  price  than  authorized,  408. 
failing  to  disclose  best  terms  to  principal,  412. 
for  interfering  in  another  transaction,  424. 
for  a  sale  at  less  than  fixed  price,  426. 
contract  secured  not  a  lease,  427. 

broker  negotiating  with  two,  sale  by  owner  to  one,  432. 
for  sale  void  by  statute,  433. 


998  INDEX. 

[References  are  to  sections.] 

Commissions,  when  not  earned — Continued. 

for  shortage  in  length,  when  purchaser  who  defaulted  knew  the  fact,  435. 

broker  unsuccessful  with  F.,  owner  selling  to  him  and  another,  437. 

where  party  to  execute  sale  shows  bad  faith,  438. 

unless  exclusive  on  sale  by  another  broker,  439. 

broker  preventing  competitive  bidding,  441. 

can  not  charge  to  beneficiaries,  442. 

by  break  in  continuity  of  broker's  negotiations,  447. 

by  break  in  sequence,  448. 

sale  by  principal,  uninfluenced  by  broker,  454. 

failure  to  consummate  contract  of  sale,  458. 

by  default  of  purchaser,  462,  556. 

not  informing  principal  of  customer,  471. 

on  making  a  sale  at  net  price,  482. 

where  neither   principal   nor   other   broker    knew   of   negotiations   of 

broker,  489. 

employed  to  sell  four  houses,  not  entitled  to  same  proportion  for  one,  493. 
where  not  the  procuring  cause  of  sale,  507. 
where  customer  exercises  reserved  right  to  withdraw  for  bad  title, 

517,  534. 

where  broker  to  have  part  of  profit,  on  sale  failing  by  defect  in  title,  535. 
where  sale  defeated  by  supposed  defect  in  title,  537. 
sale  defeated  by  want  of  title,  which  broker  knew,  539. 
where  sale  failed  by  dispute  over  taxes,  541. 
by  unavailing  efforts  to  effect  a  sale,  543. 

procuring  buyer  for  vested  remainder  on  different  terms,  548. 
if  sale  to  be  void  if  first  payment  fails,  549. 
for  contract  too  vague  for  enforcement,  551. 
by  withdrawal  and  sale  in  good  faith  by  owner,  553. 
circumstances  under  which  not  earned,  558. 
by  waiver  of  right,  560. 
where  contract  of  sale  unenforceable,  603. 
when  sub-agent  not  employed  by  principal,  lla. 
when  sub-agent  illegally  appointed  can  not  bind  principal,  lib. 
on  sale  made  after  appointment  of  receiver,  62a. 
on  principal  giving  option  to  procured  buyer,  108a. 
when  purchaser  induced  by  catalogue,  128a. 

on  sale  by  owner  to  broker's  customer  after  employment  ended,  142b. 
on  exchange  with  customer  by  another  broker,  151a. 
on  exchange  with  irresponsible  person,  165b. 
on  introduction  where  exchange  was  made  by  another,  169a. 
on  fraudulently  altered  contract,  175a. 
on  exchange  where  party  lacked  title  to  land,  180a. 
on  exchange  of  homestead,  wife  not  joining,  183a. 
where  party  withdrew  offer  to  exchange,  192a. 
where  liquidated  damages  fixed  for  breach,  195a. 


INDEX.  999 

[References  are  to  sections.! 

Commissions,  when  not  earned — Continued. 

where  exchange  defeated  by  flaw  in  title,  195c. 

where  customer  procured  to  lease  buys,  198a. 

where  lessee  failed  to  renew,  206a. 

where  lease  made  to  another  party  and  not  renewed,  212a. 

where  owner  and  tenant  independently  made  lease,  214a. 

where  building  destroyed  before  lease  signed,  216b. 

where  lessee  failed  to  give  required  security,  217d. 

when  not  entitled  to  part  of  commission  paid  other  broker,  221e. 

for  procuring  irresponsible  lessee,  221f. 

on  loan  defeated  through  borrower's  misrepresentation,  249a. 

on  failure  of  borrower  to  raise  money  to  secure  loan,  257a. 

on  bonds  sold  by  another  agent,  277a. 

on  bonds  sold  to  broker's  customer  after  agency  ended,  277b. 

on  sale  made  by  owner's  manager,  282a. 

on  negotiations  not  culminating  in  a  contract,  458a. 

when  commission  payable  by  purchaser  who  defaulted,  483a. 

on  sale  by  owner  to  unknown  customer  of  broker,  489a. 

for  sale  in  different  acreage  portion  from  that  prescribed,  496c. 

for  lease  not  executed,  499d. 

when  guilty  of  fraud  or  misrepresentation,  499f. 

when  contract  differed  as  to  deferred  payments,  503a. 

where  broker  waived  his  rights  thereto,  515a. 

on  sale  to  broker's  customer  by  owner's  son,  624a. 

without  agreement  broker  could  not  enforce  division  of  commission, 
632c. 

from  vendor  when  broker  acted  for  purchaser,  712e. 

when  law  of  place  of  performance  governs  as  to,  1129. 
Commissions  or  compensation. 

broker  entitled  to  reasonable,  615,  616. 

in  estimating  on  exchanges,  actual  and  not  trade  values  govern,  149. 

paid  broker  may  be  recovered  from  party  in  default,  163,  382,  554. 

methods  of  earning,  474. 

whether  additional  promised  a  question  for  jury,  918. 
Common  counts,  314,  631,  704a. 

Competing  purchasers,  broker  not  necessarily  guilty  in  representing,  320. 
Competition,  preventing,  441. 
Complaint.    See  PETITION  OB  COMPLAINT. 

Completion  of  transaction,  commission  usually  payable  upon,  504. 
Computation  of  commissions  made  on  actual  sum  received,  486,  560. 

as  agreed  upon,  423a. 

Computing  commission,  mortgage  treated  as  part  of  purchase  price,  275. 
Compromise,  765. 
Concealed  principal.    See  UNDISCLOSED  PBINCIPAL. 


1000  INDEX. 

[References  are  to  sections.] 

Concealment,  41,  222,  291,  299,  314,  315,  318,  320,  382,  391,  446,  487,  558, 

583. 
Conditional  agreements,  40,  44,  182,  225,  458,  517,  558. 

sale  of  mortgage,  272. 

Conditions  precedent,  45,  54,  470,  557,  570,  587. 
Conduct  of  broker,  302. 

of  owner,  302a. 
Conformity,  568. 
Connivance,  182. 

Consent,  17,  51,  120,  290,  314,  567,  644,  1036. 
Consideration,  contract  must  be  based  upon  a,  19. 

agreement  to  wait  for  commission  unsupported  by  a,  174. 

failure  of,  46,  1048. 

moral  obligation  as,  433d,  590. 

essential  constituent  of  an  enforceable  contract,  21. 

what  constitutes  valuable,  a  question  of  law,  1007. 

when  the  return  of  must  be  pleaded,  630. 

contract  that  did  not  rest  on  an  immoral,  559. 
Consolidation  of  interests  not  a  sale,  66. 
Conspiracy  of  broker  and  purchaser  to  defraud  vendor,  862a. 

purchaser  and  owner  to  deprive  broker  of  commissions,  862b. 
Constructions.     See  JUDICIAL  CONSTRUCTIONS  AND  INTERPRETATIONS. 
Consummation  of  sale,  lease  loan,  exchange,  mortgage,  23,  119,  156,  189, 

218,  224,  233,  272,  375,  433,  449,  458,  482,  499a,  499b,  570,  572. 
Contingency,  54,  780. 
Continuity  broken,  and  its  effects,  447. 
Contractual  relations.     As  to  insufficiency  of  acts  to  establish,  69. 

information  not  establishing,  70. 
Contract  of  sale,  to  set  aside,  130,  151,  295,  321. 

deed  treated  as  a,  57. 

entire  or  severable,  67. 

if  fails  by  defect  in  title  may  deprive  broker  of  commission,  12. 

coupled  with  an  interest,  16. 

in  excess  of  authority  does  not  bind  principal,  18. 

special  for  sale  of  real  estate,  17. 

unilateral,  20,  397. 
Contract,  must  be  based  upon  a  consideration,  19,  21. 

repudiation  or  rescission  of,  23. 

ratification  of,  24. 

personal,  promise  by  administrator  to  broker,  34. 
Contract,  conditional,  44,  65. 

agent  varying  terms  not  entitled  to  commission,  41. 

condition  precedent  to  taking  effect,  45. 


INDEX.  1001 

[References  are  to  sections.? 

Contract,  conditional — Continued. 

effect  of  death  of  principal  or  agent,  46. 

ambiguous,  construction  given  to,  49. 

changes  in,  55. 

not  that  of  the  owner,  55. 

failure  of  vendor  to  re-execute,  73. 

to  divide  commissions  must  be  in  writing,  79. 

agent  may  be  authorized  by  parol  to  make  lease  or  sale  of  real  prop- 
erty, 79a. 

for  sale  of  lands  in  certain  States  must  be  in  writing,  79b. 

with  another,  telegram  should  reach  principal  before,  81. 

to  take  beyond  net  price  for  commission  an  agency  and  not  an  option, 
82. 

exercise  of  option  revokes  agency,  89. 

to  sell,  etc.,  a  mere  option,  90. 

sale  by  owner,  subject  to  option,  not  a  breach  of,  91. 

principal  liable  to  action  for  breach  of,  36,  42,  102,  563,  299,  572. 

what  is  not  a  breach  of,  37. 

of  exchange  of  lands,  subject  to  encroachments,  a  mere  option,  97. 

when  petition  shows  no  breach  of,  636. 

can  not  recover  on  proof  of  substituted,  638. 

of  sale  may  be  established  by  circumstantial  evidence,  114. 

prima  facie  evidence  of  readiness  to  buy,  117. 

exchange  prima  facie  evidence  of  title,  190. 

to  pay  broker  for  effortless  sale  upheld,  132. 

may  require  a  sale  to  entitle  broker  to  commission,  133. 

without  special,  what  required  of  broker  to  find  a  purchaser,  136. 

ended  by  a  sale  by  one  of  rival  brokers,  137. 

of  sale,  broker  selling  and  vendee  refusing  to  assign,  145. 

agreement  to  plat  and  sell,  etc.,  147. 

of  exchange,  broker  entitled  to  commission  on  execution  of,  150. 

to  purchase  land  for  exchange,  sufficiency  of,  154. 

to  convey  not  sufficient  to  show  title,  159. 

to  procure  a  purchaser,  160. 

of  exchange,  failure  of  condition,   182. 

held  to  be  severable,  176. 

broker  selling  under  power  in  mortgage  without  notifying  mortgagor 
commits  no  breach  of,  259. 

abandonment  of  by  purchaser,  292. 

abandonment  by  broker,  292. 

in  excess  of  authority  vested  in  broker,  307. 

varying  from  instructions  will  not  be  enforced,  307a. 

in  excess  of  authority  binds  the  broker,  307b. 

illegal,  327. 


1002  INDEX. 

[References  are  to  sections.] 

Contract,  of  sale  under  a  general  power,  broker  must  bind  principal  by,  328J. 
of  brokerage  not  set  aside  for  fraud,  348. 
broker  to  make  written,  can  not  make  oral,  363. 
to  divide  fees  with  sub-agent  becomes  binding  when,  397. 
when  modified,  rights  depend  upon  new,  411. 

for  the  sale  of  real  estate  may  be  established  by  oral  evidence,  419. 
secured  not  a  lease,  and  broker  not  entitled  to  commission,  427. 
consummation  of,  449,  458. 

of  sale,  when  invalidity  unavailable  to  defeat  commission,  454. 
by  performance,  455,  567. 
severable,  455. 

failure  of  purchaser  to  carry  out,  460. 
cancellation  of,  462. 
in  excess  of  authority,  458. 
defect  in  title  defeating  commission,  459. 
broker  not  required  to  prepare,  474a. 
oral,  followed  by  written,  to  sell  land  entitles  broker  to  commission, 

492. 
commissions   are   due  when   contract   made   with   purchaser   produced 

by  broker,  499. 
partial  performance  entitles  broker  to  recover  neither  on  contract  nor 

on  a  quantum  meruit,  509. 
in  absence  of  express  broker  producing  purchaser  may  recover  on  a 

quantum  meruit,  513. 
broker  entitled  to  commission  on  bringing  parties  together  though  they 

contract  on  different  terms,  532. 
after    memorandum    contract    signed,    broker    entitled    to    commission 

where  principal  refused  to  pay  water  tax,  542. 
in  some  States   recovery  may  be  had  for   partial  performance  of  an 

entire,  546a. 
subject  to  unauthorized  condition,  broker  not  entitled  to  commission 

for  procuring,  547. 

to  be  void  if  first  payment  fails,  broker  dees  not  earn  commission,  549. 
withdrawal  of  land  from  sale  entitles  broker  to  commission,  552. 
withdrawal  and  sale  by  owner  to  customer,  in  good  faith,  bars  com- 
mission, 553. 

parol,  binds  unnamed  principal,  583. 
to  pay  commission  on  withdrawing  land  from  sale  strictly  construed, 

585. 

verbal  for  sale  of  land,  no  rights  in  equity  under,  589. 
of  sale  requiring  abstract  of  title  not  within  authority,  597. 
usage  proved,  law  presumes  contract  made  with  reference  thereto,  599. 
where  required  to  be  in  writing,  without  unenforceable,  602. 
where  unenforceable  broker  can  not  recover  commission,  603. 
by  unlicensed  broker  not  absolutely  void,  604. 
hiring  auctioneer  need  not  be  in  writing,  605. 


INDEX.  1003 

[References  are  to  sections.] 

Contract,  to  pay  plaintiff  if  defendant  bought  railroad  good  only  for  a 
reasonable  time,  613. 

where  unauthorized,  knowledge  of  by  principal  a  prerequisite  to  rati- 
fication, 624. 

ratification  of,  not  shown  by  acquiescence  in  without  knowledge,  618. 

ratification  shown  by  acceptance  of  offer,  619. 

of  employment,  plaintiff  must  allege,  632a. 

what  broker  must  show  to  recover  on  implied,  712a. 

recovery  of  money  paid  on  unauthorized,  728a. 

to  avoid  issue  must  be  presented  by  pleadings,  87 la. 

between  owner  and  purchaser  not  evidence  that  broker  found  pur- 
chaser, 833a. 

invalid,  instruction  so  stating  misleading,  1002. 

of  sale,  instrument  construed  to  be,  1087. 

when  not  invalid,  1092. 

not  in  violation  of  United  States  land  laws,  1100. 

limited  to  one-half  net  profits,  1103. 

construed  that  broker  was  to  receive  one-half  net  profits,  1104. 

construed  not  to  be  harsh  or  unreasonable,  1106. 

construed  to  be  one  of  agency,  1107. 

construed  to  be  enforceable  against  principal,  1108. 

of  agent  to  sell  land,  not  objectionable  though  not  signed  by  both 
parties,  1109. 

for  benefit  of  third  person  may  be,  by  him,  enforced,  1111. 

of  sale,  distinction  drawn  between  consummated  and  unconsummated, 
1113. 

between  brokers  for  division  of  commission  construed,  1114. 

for  commissions,  construction  of,  1115. 

held  to  be  severable  and  not  entire,  1116. 

construction  defining  employment  of  word  "list,"  1117. 

construction  of,  to  pay  commission  to  broker,  1118. 

construction  of  particular,  1119,  1120,  1121,  1122,  1124,  1127,  1128, 
1129. 

when  place  of  performance  of  governs,  1128,  1129. 

when  interpretation  of  for  the  court,  when  a  question  of  fact  for  jury, 
1131. 

may  be  put  in  writing  after  performance,  79c. 

action  ex  delicto  maintainable  on  parol,  79d. 

construed  one  of  sale  and  not  an  option,  82a. 

of  option  not  within  statute  of  frauds,  83a. 

to  sell  land  may  give  broker  option  to  purchase,  34a. 

held  an  option  and  not  one  of  brokerage,  85a. 

broker  procuring  customer  to  exchange  who  defaults,  entitled  to 
commission,  S7a. 

to  Bell  real  estate  though  word  "option"  is  used,  90a. 


1004  INDEX. 

[References  are  to  sections.] 

Contract  to  pay,  etc. — Continued. 

held  an  option  and  brokerage,  llOa. 

held  not  within  statute  of  frauds,  140a. 

fraudulently  altered  barred  commissions,  175a. 

for  exchange,  not  in  writing,  does  not  bar  commission,  191a. 

act  constituting  breach  of,  259a. 

refusal  of  owner  to  fix  date  of  public  sale  not  a  breach  of,  259b. 

brokers  may  make  oral  between  themselves,  37  la. 

three  brothers  acting  for  family  liable  for  commission  on,  407a. 

written  to  sell  realty  can  not  be  modified  orally,  41  la. 

held  to  guarantee  payment  of  $8,000  for  land  sold  at  public  sale, 
403a. 

to  sell  gives  no  power  to  bind  principal  to  sell  and  convey,  418a. 

to  sell  land  not  required  to  be  in  writing,  419a. 

broker  accepting  change  of  sale  to  option  did  not  bind  principal, 
427a. 

of  employment  of  broker  void  by  law  of  state  where  made  void  every- 
where, 433a. 

with  broker  by  statute  void  after  one  year,  433b. 

with  broker  where  signature  printed  upheld,  433c. 

void,  yet  notes  collectible,  433d. 

negotiations  not  constituting  contract,  broker  barred  commission, 
458a. 

broker  not  performing  by  producing  one  who  asks  for  abstract  in  ad- 
dition, 476a. 

specific  supersedes  prior  indefinite,  492a. 

on  breach  to  exchange  broker  can  not  recover  from  wrongdoer  com- 
mission payable  by  other  party,  517a. 

between  agent  and  sub  need  not  be  in  writing,  523a. 

by  broker  beyond  authority  void,  549a. 

between  brokers  to  share  commissions  need  not  be  in  writing,  583a. 

broker  entitled  to  commission  on  corporation  acquiring  title  to  land, 
596a. 

broker  to  purchase,  without  binding  contract,  must  get  one  with 
good  title  to  earn  commission,  596b. 

postal  card  insufficient  to  constitute,  601a. 

held  one  to  sell  and  not  of  agency,  602c. 

signed  by  all  tenants  in  common  entitled  broker  to  commission,  602d. 

of  employment  must  be  in  writing  whether  broker  or  middleman, 
602e. 

to  purchase  land  not  required  to  be  in  writing,  603a. 

of  employment  of  broker  in  March  not  ended  in  August,  612d. 

in  absence  of  broker  could  not  enforce  division  of  commission,  632c. 

broker's  failure  to  show  performance  no  cause  of  action,  649b. 

broker's  failure  to  state  performance  of,  649b. 

broker's  failure  to  properly  state  employment,  650a. 


INDEX.  1005 

[References  are  to  sections.] 

Contract  to  pay,  etc. — Continued. 

of  employment  by  implication,  712b. 

evidence  admissible  to  show  one  for  compensation,  749b. 

broker  must  prove  as  pleaded,  833d. 

oral  promise  to  make  does  not  estop  to  deny  right  to  commission, 
861a. 

alleging  express  can  not  recover  on  implied,  883a. 

where  binding  needed  to  finding  a  purchaser,  465. 

without  broker  must  consummate  sale,  465. 

fulfillment  of  not  interfered  with  by  courts,  571. 

construction  of,  1132. 

Conversations  a/3  evidence,  735,  736,  809a,  827. 
Conveyances,  setting  aside  of,  18,  57,  572. 
Co-operation,  219. 

Corporations,  24,  38,  204a,  328n,  305,  314,  468,  557,  572,  574,  596a,  1075c. 
Correspondence,  17,  18,  21,  23,  24,  42,  79,  237,  564,  648,  738,  757,  803a, 

829,  1079. 
Costs,  569,  700a. 
Counter-proposition,  56. 

County.     When  not  chargeable  with  a  debt,  303a. 
Courts,  17,  314,  571,  1066,  1131. 

findings  by,    1048-1053b. 
Covenants,  43,  239,  364,  417- 
Credit,  53. 
Creditor  collecting  rent  can  not  pay  therefrom  hie  own  debt,  386. 

failing  to  impeach  conveyance,  151. 
Crops,  486,  500a. 

Cross-examination,  817,  817a,  817b 
Cross-petition,  630. 

Custodian  of  contract,  in  absence  of  other  arrangement,  broker  is,  557. 
Custom  or  usage,  24,  462,  598,  599,  626,  626a,  746,  764,  1021,  1026. 

D 

Damages,  actions  for,  15,  26,  271a,  299,  313,  462,  563,  572. 

error  to  charge  jury  not  bound  by  any  rule  in  fixing,  1013. 

measure  of,  300,  358,  396,  462,  587. 

speculative,   300. 

certain  expenses  not  elements  of,  581. 

See  also  PETITION. 
Deals,  455,  570,  771,  820,  866,  967. 
Death,  its  effect  upon  contracts,  15,  34,  46,  456. 

single  letter  insufficient  to  establish  agency  after,  48. 
Debt,  when  county  not  chargeable  with  a,  303a. 

of  another,  303. 


1006  INDEX. 

[References  are  to  sections.  1 

Debtor  before  payment  should  see  agent  has  security,  357. 

Decedent,  34. 

Deceit,  41,  298,  321,  607,  1053,  1073. 

Deeds,  15,  18,  24,  33,  35,  39,  43,  57,  90,  144,  159,  161,  163,  290,  291,  292, 

311,  314,  335,  364,  368,  464,  572,  574,  612a,  626,  628,  758,  925. 
their  execution  by  agents,  58. 
Default,  party  in  liable  for  commission,  163. 

Default,  purchaser  in,  broker  not  entitled  to  commission,  274,  462,  556. 
broker  in,  liable  to  pay  interest,  322. 

not  necessary  to  put  defendant  in  before  suing  for  fees,  617. 
in  an  exchange,  liable  for  commission  paid  broker,  163. 
to  entitle  broker  to  commission,  must  be  by  refusal  or,  of  principal, 

458. 
Defaulting  as  to  exchange,  party  not  liable  to  broker   for  commission, 

1035. 
purchaser,  broker  has  right  of  action  against  for  lost   commission, 

588. 
vendee,  broker  entitled  to  commission  on  actual  payments  by,   500. 

500a,  506. 
Defeat  of  broker's  right  to  commissions,  what  effects. 

merely  obtaining  price  from  owner,  and  not  employed,  17. 
purchaser  making  parol   contract   and   repudiating  before   it   is   re- 
duced to  writing,  41. 
by  misrepresentations  of  broker,  42,  188. 
by  broker's  mistake  in  describing  land,  181. 
by  failure  of  conditional  agreement,  182. 
by  failure  to  secure  transfers  from  parties  to  exchange,  198. 
sale  frustrated  by  lessor's  refusal  to  assign,  216. 
where  lender  refused  to  consummate  loan,  224. 
conditional  loan,  defeated  by  defect  in  title,  225. 
by  failure  of  purchaser  to  execute  mortgage,  274. 
by  breach  of  broker's  duty  to  principal,  290. 
by  negligence  of  broker,  346. 
by  sub-agent  concealing  fact  from  principal,  391. 
by  sub-agent  exceeding  authority,  392. 
by  secretly  representing  both  parties,  400. 
broker  a  member  of  purchasing  syndicate,  405. 
broker  making  sale  on  lower  terms  than  authorized,  408. 
broker  failing  .to  disclose  to  principal  the  best  terms  obtainable,  412, 

412a. 
where  purchaser  who  knew  exact  length  of  lot  refused  on  that  account 

to  take,  435. 

instances  of  defeat  of  broker's  right  to  commission,  454. 
by  failure  to  consummate  contract  of  sale,  458. 
in  certain  cases  by  failure  of  sale  by  defect  in  title,  459. 


INDEX.  1007 

[References  are  to  sections.] 

Defeat  of  broker's  right  to  commissions,  what  effects — Continued. 

on  account  of  irresponsibility  of  purchaser,  464. 

failure  to  inform  principal  of  customer,  471. 

for  sale  not  within  the  description,  476. 

when  commission  payable  from  purchase  money,  where  sale  not  made, 
501. 

by  broker's  erroneous  advice  as  to  liability  for  sewer  tax,  529. 

by  demand  of  $10,000  to  release  contract  lien,  514. 

sub-agent  could  not  recover  unlawful  commissions,  522. 
Defeat  of  broker's  right  to  commissions,  what  does,  not  effect. 

sale  by  owner  to  one  with  whom  broker  had  begun  negotiations,  15. 

refusal  of  wife  to  join  in  deed  of  conveyance,  39. 

although  principal  held  only  an  option  at  time  of  sale,  87. 

that  customer  does  not  own  land,  when  he  has  a  contract  for  its  pur- 
chase, 154. 

by  lessor's  arbitrarily  refusing  to  accept  lease,  197. 

by  principal  refusing  to  take  loan,  242. 

by  principal  selling  to  another  after  broker  has  a  customer,  302. 

by  immaterial  variance  in  the  description,  428,  428a. 

instances  which  did  not  defeat  broker's  right  to  commissions,  454. 

selling  a  portion  instead  of  whole  tract,  458. 

payment  of  forfeiture  held  equivalent  to  performance,  462. 

on  making  contract,  which  is  accepted,  although  purchaser  turns  out 

to  be  irresponsible,  464. 

litigation  instituted  by  third  persons,  473. 

by  modification  not  assented  to  by  broker,  477. 

by  modification  by  owner  in  broker's  presence,  478. 

broker  failing  to  disclose  that  nominal  is  not  the  real  purchaser.  487. 

reporting  offer  of  $16,000  instead  of  $15.000,  491. 

because  to  be  paid  from  purchase  money,  and  Bale  failed,  501. 

failing  to  name  purchaser  in  telegram  to  owner,  530. 

if  purchaser  willing  to  perform  statute  of  frauds  unavailable  to  de- 
feat, 609. 

Defeat  of  loan  through  wrong  dimensions,  249. 
Defective  petition  for  commission  on  passing  of  title,  649. 

for  procuring  tenant,  in  not  alleging  to  «ell,  850. 

for  selling  bonds,  652. 

in  not  alleging  agreements  stated,  654. 
Defects  in  principal's  title,  345,  459. 
Defenses,  218,  675-703h,  1029. 
Definitions.    See  JUDICIAL  COKSTEUCTJONB  Ain>  INTKHPBETATIONS. 

See  WORDS. 

Delays,  18,  41,  292,  296,  614d. 
Delegated  authority,  2,  5,  987. 
Demurrable,  alleging  sale  by  owner  ending  contract,  643. 

alleging  notice  of  double  employment  not,  646. 


1008  INDEX. 

[References  are  to  sections.] 

Demurra&le  alleging  sale  by  owner  ending  contract — Continued. 

incomplete  copies  of  unsigned  letter*),  648. 

asking  judgment  for  excess  over  net  price,  on  refusal  to  sell,  655. 
Demurrer,  640,  659-665a. 
Departures,  what  are  not,  669,  704,  704a. 
Deposits,  50,  51,  297,  558,  805. 

Description  of  property,  59,  123,  181,  267,  296,  428,  428a,  451b,  476. 
Destruction  of  subject-matter  of  contract,  16. 
Diamonds,  434. 

Difference  in  price  principal  willing  to  sell  at  and  asked,  456. 
Dimensions  of  property,  249,  435,  451. 
Disagreements,   143,  465. 
Discretion,  5,  111,  304,  328i,  825. 

acts  involving  broker  can  not  sub-delegate,  5. 
Dismissal  of  action,  when  proper,  636a,  863. 

when  error,  864,  1078. 

may  receive  evidence  after  motion  for,  833b. 
Dissolution  of  agency.     See  AGENCY,  TEBMINATION  OF. 
Dissuasion,  810. 

Division  of  commissions.     See  SHARING  COMMISSIONS. 
Double  liability,  36,  305. 

compensation,  232,  254,  475,  559,  576,  630. 

capacity,  306. 

payment  of  commissions,  burden  of  proof,  728a. 

employment  forbidden,  51. 

notice  or  knowledge  of  by  principal,  560. 
allegation  of  notice  of  not  demurrable,  644. 
Drunkenness,  60. 

Due,  when  commissions  become,  499,  499a,  499b. 
Duplicate,  contract  in,  458. 
Duty  or  obligation,  165,  290,  291,  314,  344,  420,  420a,  456,  578,  656a. 

E 

Earned,  when  a  broker's  commissions  are,  499a. 

commissions,  to  recover  immaterial  whether  broker  was  agent,  799a. 

owner  can  not  by  refusing  to  convey  defeat,  374a. 
Ejectment,  57,  311,  595. 
Election  of  remedies,  414a. 

Employe  of  seller  defeating  sale,  broker  entitled  to  commission,  451. 
Employment  of  broker,  12,  13,  17,  21,  92,  564. 

sale  according  to  terms  of  entitles  broker  to  commission,  113. 

suffices  in  the  absence  of  ratification,  24. 

when  offer  to  pay  broker  does  not  show,  173. 

double  forbidden,  51. 


INDEX.  1009 

[References  are  to  sections.] 

Employment  of  broker — Continued. 

participation  in  exchange,  without,  does  not  entitle  broker  to  com- 
mission,  162. 

abandonment  of,  292,  558. 

in  absence  of,  introducing  purchaser  sometimes  insufficient,  450. 

of  engineer,  310. 

custom  insufficient  to  supply  lack  of,  626a. 

in  petition  for  commissions  must  allege  contract  of,  632a. 

of  broker  to  measure  land,  594. 
Encroachments,  228,  766. 
Entries,  in  books  as  evidence,  748. 
Equitable  title  to  stock,  572. 
Equity,  314,  321,  572,  589,  987. 
Error,  to  prevent  showing  how  option  was  made  to  buyer,  106. 

to  grant  new  trial  to  set  up  exercise  of  option,  111. 

to  prevent  defendant  showing  broker  was  employed  by  other  party, 
166. 

to  grant  judgment  for  full  amount  of  commission  when  loan  failed, 
250. 

refusal  to  grant  non-suit  not,  1075a. 

in  awarding  verdict  to  real  estate  agent,  1076b. 
Errors,  1072-1078k. 
Escrow,  de.ed  in,  34,  297. 

Estoppels,  107,  211,  246,  258,  329,  601,  839-862c. 
Evidence,  contract  of  sale  may  be  established  by  circumstantial,  114. 

deed  of  conveyance  to  prove  exchange,  161. 

proof  necessary  to  recover  commission  for  exchange  when  not  con- 
summated, 189. 

execution  of  contract  prima  facie  evidence  of  title,  190. 

verdict  set  aside  as  against  the  weight  of,  252. 

admissible,  237,  684b,  696a,  729-761d. 

inadmissible,  184,  762-783d,  802a. 

immaterial,  174,  525,  784-803a,  805b,  80»c. 

irrelevant,  804-809c. 

in  general,  810-833c. 

declarations,  777,  834-836. 

self-serving,  837. 

admissions,  34. 

admissions  against  interest,  888. 

verdict  must  be  palpably  against  weight  of  eyidenee  to  authorize  set- 
ting aside,  1055,  1066. 
Exceptions,  433a,  573. 

Excess  in  price  as  compensation,  11,  53,  142,  289,  290,  300,  320,  456,  481, 
482,  483,  484,  1040,  1094. 

when  broker  must  account  for  to  principal,  630. 


1010  INDEX. 

[References  are  to  sections.] 

Exchange,  to  constitute  value  of  estates,  should  be  equal,  184. 

broker,    for    commission,    has    no   title    or    interest    in    property    ex- 
changed, 172. 

mere  offer  to  pay  broker  does  not  show  employment,  173. 
agreement  to  wait  for  earned  commissions  without  consideration,  174. 
broker   effecting,    entitled   to    commission,    though    terms   changed   by 

parties,  175. 

contract  of  held  to  be  severable,  176. 

defeated  by  lease,  broker  not  entitled  to  commission,  177. 
interfering  broker  not  entitled  to  commission  for  effecting,  178. 
defeated  by  failure  to  furnish  abstract  of  title,  broker  not  entitled  to 

commission,  179. 
broker  entitled  to  commission  where  purchaser  able  to  give  title  to 

property  in  exchange,   180. 

mistake  in  description  defeated  broker's  right  to  commission,  181. 
failure  of  conditional  agreement  to,  broker  not  entitled  to  commission, 

182. 

misrepresentation  by  agent  defeated  right  to  commission,  183. 
receipt  given  in  another  transaction  inadmissible,   184. 
for  amount  to  boot,  broker  entitled  to  commission  on  whole  value,  185. 
broker  entitled  to  commission  on  effecting  binding  contract  of,  186. 
broker  entitled  to  commission  on  producing  one  willing  to,   188. 
on  failure  to  consummate,  proof  necessary  to  recover  commission,  189. 
broker  earns  commission  when  both  parties  agree  en  terms  of,  191. 
broker's  right  to  commission  not  affected  by  failure  of  one  party  to 

perform,  192. 

failure  to  secure  transfers  defeats  right  to  commission,  193. 
value  of  land  in  may  be  shown  to  jury,  194. 

broker  not  entitled  to  commission  where  party  shows  bad  faith,  195. 
broker  not  entitled  to  commission  where  party  to  does  not  show  good 

faith,  438. 
broker  not  entitled  to  commission  for  an  exchange  with  unperform- 

able  conditions,  438. 
of  goods  for  land,  467. 

default  of  customer  to  does  not  bar  commission,  87a. 
party  to  barred  recovery  of  commission  paid  broker,  139a. 
broker  not  entitled  to  commission  when  effected  by  another,   151a. 
broker  to  required  to  act  in  good  faith,  158a. 
broker  to  earn  commission  must  produce  one  willing  to,   157a. 
broker     entitled    to   commission    for   with    person    purporting   to   be 

agent  of  another,   IflSa. 

broker  not  entitled  to  commission  where  party  to  irresponsible,  165b. 
introduction  not  enough  to  entitle  broker  to  commission,  169a. 
broker  not  entitled  to  commission  where  party  had  no  title,  180a. 
broker  entitled  to  commission  on  securing  agreement  for,  186a. 
broker  entitled  to  commission  though  contract  not  in  writing,   191a. 


INDEX.  1011 

[References  are  to  sections.] 

Exchange  to  constitute  value  of  estates,  should  be  equal — Continued 

broker  not  entitled  to   commission   where  party   withdraws    offer   to, 

192a. 
broker  not  entitled  to    commission    where    liquidated    damages    fixed 

for  breach,  195a. 

broker  entitled  to  commission  from  both  parties  to,  195b. 
broker  not  entitled   to  commission   when    defeated    by    flaw    in    title, 

195c. 

broker  denied  right  to  assert  lien  when  rescinded  for  fraud,  284a. 
waiver  by  party  to  that  other  assume  mortgage,- 51 5f. 
on  breach,  broker  can  not  recover  from  wrongdoer  commisaion  to  be 

paid  by  other  party,  517a. 
petition  against  broker  for  fraud  in,  656b. 
release  of  party  to  no  defence  that  note  not  yet  due,  698a. 
party  to  estopped  by  act  of  his  agent,  848a. 

when  other  party  not  charged  with  notice  of  broker's  misrepresenta- 
tion, 36. 

when  knowledge  of  broker  not  acquired  while  agent,  86. 
when    facts    may    warrant    recovery    of    commission    but    from    o«e 

party,  51. 

effect  of  concealment  by  broker,  291. 
defeated  by  fraud  of  broker,  814. 

when  action  for  wrong  of  broker  will  not  lie  against  principal,  316. 
when  party  to  may  revoke  broker's  contract,  658. 
conflict  of  interests  in  broker  representing  both  parties  to,  559. 
Exchanges   of  real  estate,   19,   41,   149-195,   290,   314,   382,   454,  458,   558, 

576,  609,  626,  764,  787,  796. 
Exclusive  employment  as  broker  or  agent,  13,  22,  56,  446,  458,  465,  559, 

570. 

Executed  sale,  767. 
Executors  and  administrators,  5,  34,  198,  280,  45«,  458,  493,  657,   687, 

651. 

Ex  maleficio,  trustee,  36. 
Exoneration,  308. 

Expenses,  15,  262,  289,  809,  514a,  661. 
Experte,  228,  766,  766a. 
Extra  compensation,  examined  to  see  whether  rea«onabl«,  £81. 

F 

"Failure  of  sale  by  disagreement,  41. 
by  defect  in  title,  459. 
by  purchaser,  460. 
by  failure  to  furnish  abstract  of  title,  179. 


1012  INDEX. 

[References  are  to  sections.] 

Failure  to  sell  and  owner  selling  for  lese,  148. 
of  consideration,  461,  1048. 
of  conditional  agreement,  182. 
of  broker  to  report  offer,  312. 
to  disclose  nominal  not  real  purchaser,  487. 
not  caused  by  fault  of  broker,  488. 
to  sell  all,  and  owner  selling  part  to  customer,  496. 
of  broker  to  disclose  best  terms  obtainable,  412. 
to  give  name  of  purchaser,  525. 
of  sale  by  dispute  over  taxes,  541. 
of  sale  after  memorandum  contract  signed,  542. 
of  sale  because  rights  of  two  heirs  not  acquired,  555. 
to  remove  snow  from  sidewalk,  broker  not  liable,  591. 
to  consummate  exchange,  189. 
of  one  party  to  perform,  191. 

Failure  to  secure  transfers  to  exchange,  193. 

to  report  loan  barred  commission,  235. 

of  purchaser  to  execute  mortgage,  274. 

of  broker  to  sell,  457,  543. 

to  consummate  contract  of  sale,  458,  460. 

of  proof,  1078c. 

to  consummate  exchanges  of  real  estate,  189,  192,  193. 

of  sale  through  deficiency  in  quantity,  451. 

of  owner  to  give  possession,  454,  464. 

of  owner  to  execute  contract  of  sale,  454,  456. 

of  customer  to  take  property,  551. 
Faith,  broker  acting  in  bad,  required  to  refund  commission,  163,  382,  554. 

broker  acting  in  bad,  forfeits  right  to  commission,  290. 

vendor  acts  in  bad,  by  giving  commission  to  purchaser's  agent,  401. 

broker  not  entitled  to  commission  where  party  to  exchange  does  not 
show  good,  195,  438. 

broker  not  responsible  for  misrepresentations  made  in  good,  165. 

broker  required  to  show  that  he  acted  in  good,  166,  166a,  290,  867a, 
915,  921,  1012,  1042. 

principal  revoking  contract  must  act  in  good,  15,  290,  867a. 

broker  undertaking  to  buy  at  exorbitant  price  not  evidence  of  good, 

290. 

False  representations,  313,  314,  315,  319,  320,  321,  435,  454,  462,  1076. 
Father,  contract  signed  by  son  by  direction  of  insufficient,  18. 
Fault,   broker   entitled   to   commission   where   failure   not   caused   by    his, 
449,  464,  488,  533. 

sale  failing  without   fault  of  principal,   broker   not   entitled   to   com- 
mission,  122. 

to  entitle  broker  to  commission  failure  must  be  due  to  principal's, 
449. 

of  either  party  barred  broker's  commission,  558. 


INDEX.  1013 

• 

[References  are  to  sections.] 

Fictitious  purchaser,  314. 
Fidelity.    See  DUTY. 

Fiduciary  relations,  35,  57,  291,  311,  314. 

Financial  responsibility  of  purchaser,  40,  41,  157,  158,  158a,  300,  314,  4.12, 
458,  464,  515b,  515c,  558,  580a,  628,  694b,  815,  1040a,  1053b. 

conditions,  463. 

Finding  a  purchaser,  11,  17,  42,  79,  113,  119,  129,  136,  397,  398,  462,  464, 
465,  482,  513,  523,  538,  712c,  955. 

after  revocation,  not  entitled  to  commission,  516. 

one  willing  to  exchange,  188. 

for  plaintiff  as  procuring  cause  excludes  co-operation,  219. 
Findings  by  the  court,  1048-1053c. 

special  by  jury,  1099. 
Fire,  rebuilding  after  a,  42. 
First  broker  who  succeeds  entitled  to  commission,  41,  141,  445. 

entitled  to  commission  by  second's  relinquishment,  515. 
failure  to  give  notice,  291. 

broker's  claim  for  commissions  binding,  211. 

mortgages,  agent  to  invest  confined  to,  264. 

payment  failing,  contract  to  be  void,  549. 

employer  given  first  right  to  purchase,  320. 

broker  entitled  to  commission  by  second's  interference,  444. 

payment,  broker  entitled  to  excess  from,  484. 

payment  failing,  contract  to  be  void,  549. 

cash  payment,  when  not  a  condition  precedent,  557. 
Fixed  price.    See  PRICE  FIXED. 
Foreclosure  of  mortgages,  262,  500a. 
Foreign  principal,  42,  328a. 

Forfeitures,  41,  147,  290,  291,  297,  313,  320,  462,  556,  557,  558,  572. 
Forgery,  38,  351,  574. 
Forms,  see  Index  to  Forms,  1052. 
Fraud  of  broker  authorizes  his  discharge,  16. 

broker  selling  to  resell  no,  126. 

broker  buying  at  inadequate  price  by,  130. 

land  conveyed  by  grantor  in,  of  creditors,  155. 

mortgage  taken  by  lender,  bound  by  agent's,  62,  268. 

of  agent  in  appropriating  money  to  pay  off  mortgages,  273. 

of  agent  chargeable  to  principal,  313. 

of  broker  against  his  principal,  175a,  314,  641a. 

of  broker  against  third  persons,  315. 

of  sub-agent,  316,  390. 

of  principal  against  broker,  317,  656b. 

of  third  persons  against  broker,  318. 

of  principals  inter  se,  319. 

debatable  acts  of  broker  not  constituting,  320,  487. 

points  of  practice  in,  321. 


1014  INDEX. 

[References  are  to  sections.] 

Fraud  of  broker,  authorizes  his  discharge — Continued. 

joint  owner  condoning  liable,  329. 

brokerage  contract  not  <3et  aside  for,  348. 

of  sub-agent,  broker  liable  for,  390. 

of  broker  may  give  rise  to  action  of  tort,  414. 
Fraudulent  representations  to  principal  by  third  persons,  454. 

G 

General  agent,  6,  356. 

Gold,  loan  payable  in,  575. 

Goods  exchanged  for  land,  467. 

Grantee,  failure  to  insert  name  of  in  deed,  311. 

Gratuities,  466,  558,  560c. 

Gross  price  changed  to  net,  485. 

Guaranties,  broker  to  sell  does  not  authorize,  112a. 

for  land  sold  at  public  sale,  403a. 
Guardian  of  minor  or  insane  person,  57,  62. 

H 

Heirs,  rights  of,  555. 

Homestead  and  exemption  laws,  239. 

Horse,  454. 

Hotel,  31,  781,  988. 

Houses,  sale  of,  69,  454,  493,  493a,  830. 

renting  of,  19. 
Husband  and  wife,  39,  183a,  454,  774,  826,  908,  1022,  1057. 


Identity,  50,  320,  831a. 

Ignorance  of  contract  by  holder  of  record  title,  540. 

of  principal  of  efforts  of  broker,  454. 

of  agent's  double  employment,  578,  1074. 
Illegal  purposes,  37,  326. 

contract,  327. 

declaring  bonds,  276. 

commissions,  recovery  of  denied,  522. 

sale  of  bonds,  broker  not  liable,  280. 
Illinois,  contract  for  sale  of  lands  must  be  in  writing,  79b. 

doctrine  as  to  use  of  seals,  592. 

contract  with  broker  to  sell  lands  must  be  in  writing,  590. 
Immaterial,  when  reasonable  time,  616. 

knowledge  by  principal  of  act  of  attorney  in  fact,  623. 


INDEX.  1015 

[References  are  to  sections.] 

Immediately,  means  in  a  reasonable  time,   580. 
Immunity  obtained  from  liability,  601. 
Implied  powers,  328,  394a. 

authority,   18. 

contract,  what  broker  must  show  to  recover  on,  712a,  883a, 

promise,  12,  162. 

charge  error  that  no  leases  are  made  except  through  brokers,  201. 
Improvement,  when  evidence  of  inadmissible,  783b. 

broker  without  authority  to  authorize  permanent,  42,  372. 

note  payable  on  vendee  making  certain,  461. 
Inability  to  perform,   15,  41,  380,  392,  454,  458,  460,  462,  488,  500,  506, 

555,  556. 
Inconsistent,  instructions  held  not  to  be,  989,  1016,  1032,  1041. 

charge  in  the  alternative,  1041a. 
Incumbrances,  313,  315,  572. 
Indemnity,  of  agent,  299,  588a,  595. 

Independent  inquiries,  rendering  false  representations  unactionable,   454. 
Indiana,  contract  with  broker  to  sell  land  must  be  in  writing,  590. 

doctrine  of  quantum  meruit  applied  to  entire  contract,  546a. 

oral  contract  employing  broker,  wherever  made,  invalid,  590. 
Indirect  acts  insufficient  to  establish  contract  relations,  69. 

acte  which  establish  contractual  relations,  69a. 
Individual  liability,  when  principal  exempted  from,  38,  62,  328n. 
Individually,  receipt  signed  by  broker  binds  him,  383. 
Infant,  guardian  of,  62,  220. 

may  in  certain  cases  authorize  another  to  act  for  him,  2. 
Inference  of  authority,  what  insufficient  to  warrant,  381. 

of  law,  reasonable  price  an,  17,  292. 
Influence,  defendant  may  show  what  other  agents  exerted,  819. 

of  vendor  and  agent,  806. 

Information,  70,  282,  290,  314,  382,  399,  448,  557. 
Injunction  upon  sale,  broker  entitled  to  commission,  118,  469. 
Inoperative,   mere   insertion   of  word   in   contract  without   consideration, 

18,  19. 
Inquiry  from  broker  a*  to  price  of  land,  indicates  representing  another, 

42  la. 

Insanity,  347a. 
Insolvency,  57,  464,  630. 

Installments,  payments  in,  21,  67,  299,  313,  470,  493a,  570,  640a. 
Instructions,  agent  must  follow  closely  his,  363. 

broker  departing  from  liable.  350. 

broker  securing  lease  in  violation  of,  yet  entitled  to  commission,  221d. 

sub-agent  violating,  395,  520. 

See  also  VIOLATING  INSTRUCTIONS. 
Insufficient,  allegation  of  bringing  parties  into  touch,  645. 


1016  INDEX. 

[References  are  to  sections.] 

Insurance,  41,  325,  567. 

company,  broker  not  agent  of,  71. 

broker  entitled  to  commission  in  stock  of,  468. 
Intention  of  parties  shown  by  subsequent  dealings,  761a. 
Interest  or  interests. 

contract  coupled  with  an,  16. 

power  coupled  with  is  an  interest  in  land  itself,  16. 

disposition  of  principal's  in  subject  matter  of  agency,  works  revoca- 
tion, 22. 

fraudulent  purchase  of,  57. 

undivided,  63. 

of  tenant  in  common,  64. 

consolidation  of,  not  a  sale,  66. 

or  title  in  properties  exchanged,  broker  has  no,  172 

in  land  as  fee  for  procuring  loan,  251. 

broker  to  procure  loan,  not  authorized  to  collect  principal  or  interest, 
255. 

broker  liable  for  failure  to  collect,  270a. 

adverse,  290,  294,  345. 

concealment  of  by  broker,  291,  315. 

and  insurance  clauses  in  contract,  557. 

when  broker  is  and  when  not  liable  for,  322. 

date  from  which  recoverable  on  commissions,  322. 

broker  obtaining  hostile  to  principal,  323. 

broker  to  collect,  has  no  power  to  collect  principal,  355. 

broker  acting  in,  for  others,  cannot  share  in  transaction  for  principal, 
388. 

competing,  558. 

of  the  parties,  courts  to  protect,   17,  571. 

purchasers  had  in  the  land,  816. 

whether  or  not  entitled  to  on  commission  question  for  jury,  903. 

liability  for  commission  of  broker  depends  on  real  parties  in,  487a. 

of  minor,  914. 

too  high  authorized  setting  verdict  aside,   1058. 

owning  but  a  half  no  excuse  for  not  paying  broker,   Iu4a. 
Interfering  broker,  178,  399,  424,  444. 
Interlineation.     See  ALTERATIONS. 

Intermediation,  purchase  from  owner  without  broker's,  481. 
Interpleader,  when  bill  of  allowed,  630,  657. 

when  not  entitled  to,  658. 

evidence  in,  777. 

Interpretation.     See  JUDICIAL  CONSTBUCTIONS  AND  INTKBPBETATIONB. 
Interview,  24,  370,  988. 
Intoxication,  60. 
Introduction  of  prospective  purchaser,  68,   169a,  450. 


INDEX.  1017 

[References  are  to  sections.] 

Invalid,  when  contract  not,  1092. 

sale,  broker  not  entitled  to  commission  for,  433. 
Iowa,  doctrine  of  quantum  meruit  applied  to  entire  contract,  546a. 
Irrevocable,   mere   insertion   of  word  in  contract,   without  consideration, 

inoperative,  18,  19. 
Irrigation,  66. 
Issues,  184,  867-873. 


Joint  liability,  407. 

owners,  42,  125,  125a,  319,  329,  960. 
Judgment  for  full  commission  error  when  loan  fails,  250. 

unauthorized  release  of  by  broker,  238. 
Judgments,  1065-1071d. 
Judicial  sale,  115. 

constructions  and  interpretations,  3,  367,  580,  582,  602a,  1001,  1079- 

1132. 
Jury,  whether  broker  entitled  to  commission  for  both  auction  and  private 

sales,  question  for,  138. 
to  determine  value  of  land  exchanged,  194. 

charge  properly  refused  that  no  leases  are  made  without  brokers,  201. 
Jury,  improper  to  submit  to,  whether  loan  broker  authorized  to  release  lien 

of  judgment,  238. 
agreement  as  to  commission  to  broker  to  procure  loan  a  question  for, 

253. 
whether,  in  taking  mortgage  with  wrong  description,  broker  guilty  of 

negligence,  a  question  for,  267. 

improper  to  charge  not  bound  by  any  rule  in  fixing  damages,  300. 
questions  to  be  determined  by,  888-929c,  1131. 
instructions  to,  930-1047H. 
Justice,  amendments  allowable  in  furtherance  of,  673. 


K 

Kansas,  doctrine  of  quantum  meruit  on  entire  contracts  prevails  in,  546a. 
Knowledge  of  agent  binding  on  principal,  258. 

of  pool  and  acquiescence  in  by  principal,  371. 

by  broker  that  principal  owns  but  part  of  premises,  472. 

sometimes  immaterial  to  constitute  ratification,  623. 

by  principal  of  unauthorized  contract  a  prerequisite  to  ratification. 
17,  624. 

ratification  not  shown  by  acquiescence  without,  618. 

taking  conveyance  from  agent  with,  of  fraud,  314. 


1018  INDEX. 

[References  are  to  sections.] 

Knowledge  of  agent  binding  on  principal — Continued. 

when  facts  not  within  his,  broker  not  liable  for  misrepresentations, 

320. 

by  principal  that  agent  represents  both  parties  binds,  560. 
effect  of  broker's  withheld  from  purchaser,  618b. 


Land  warrants,  agent  buying  liable  for  value  of  land,  3o8. 

interest  in  as  commission,  251. 

sale  of  public,  146. 

withdrawal  from  sale  entitles  broker  to  commission,  120,  552. 

mortgage  confined  to  that  designated,  239. 

owned  by  bank,  328p. 

in  lieu  of  cash,  369. 

value  of  to  aid  jury,  194. 

authority  to  locate  and  convey,  339. 

not  necessary  to  describe  in  petition  for  commission,  59. 

vendor  cannot,  by  including  other,  escape  liability  for  commission,  454. 

employment  of  broker  to  measure,  not  to  sell,  594. 
Law,  reasonable  price  inferred  by,  610. 

vendor  secretly  paying  commission  to  vendee's  agent  against  policy  of, 
the,  290. 

custom  must  be  general  before  it  will  be  declared,  598. 

of  place  of  performance,  when  it  governs,  1128. 

raises  presumption  where  usage  proved,  599. 

improper  to  submit  question  of  to  jury,  929a,  929d. 

contract  held  not  to  be  in  violation  of  U.  S.  land,  1100. 

agent  authorized  in  fact,  but  inoperative  in,  no  recovery  against,   18. 

contract  of  employment  void  by  law  of  state  where  made  void  every- 
where, 433a. 

Lawyer.     See  ATTORNEY  AT  LAW. 
Lease,  power  to  sell  does  not  include  power  to,  167,  202,  337. 

exchange  defeated  by  broker  not  entitled  to  commission,   177. 

value  of  services  of  broker  in  negotiating,  196,  570. 

lessor  refusing  to  accept,  22,  197. 

broker  to  sell  does  not  earn  commission  by  procuring,   198. 

option  not  exercised  by  taking,  at  lower  rental,  199. 

with  privilege  of  purchase  equivalent  to  sale,  200. 

charge  properly  refused  that  implied  none  were  made  except  through 
brokers,  201. 

broker  secretly  securing  to  himself  holds  as  trustee,  203. 

entitled  to  commission  for  procuring  lessee,  203a,  204. 

to  earn  commission  must  negotiate  lease  or  exchange  that  principal 
can  perform,  204a,  438. 

power  to  do  all  things  concerning  real  estate  authorized,  205. 

waiver  of  tenant's  privilege  of  purchase,  206. 


INDEX.  1019 

[References  are  to  sections.] 
Lease,  power  to  sell  does  not  include  power  to — Continued. 

broker   empowered   to   collect  rents,   not   entitled   to   commission   for 

securing,  207. 

broker  for  tenant  has  no  claim  on  lessor  for  commission,  208. 
broker  to  secure  lessee  not  entitled  to  commission  for  option,  209. 
in  action  for  commission,  owrfer  can  show  lease  to  another,  210. 
broker  bound  by  first  claim  for  commission  and  cannot  increase,  211. 
broker   securing  lease  for  five  years,  sale  at  second,  loses  remaining 

commission,  212. 

where  sub-letting  forbidden,  oral  assent  of  agent  unavailing,  213. 
by  owner  after  broker's  contract  ended,  not  entitled  to  commission,  214. 
broker  bringing  about  the  sale  of  a,  entitled  to  commission,  215. 
sale  of  frustrated  by  lessor,  broker  not  entitled  to  commission,  216. 
broker  not  entitled  to  commission  where  plaintiff  refused  to  make,  216a. 
to  highest  bidder,  broker  preventing  not  entitled  to  commission,  217. 
in  -action  for  commission  for  securing  defendant  can  show  it  was  merely 

tentative,  218. 

finding  as  procuring  cause  of,  excludes  co-operation,  219. 
broker  to  secure  one  for  eight  years  to  earn  commission,  220. 
with  privilege  of  purchase,  328j. 

not  entitled  to  commission  a/9  contract  not  a,  198a,  427. 
not  entitled  to  commission  until  effected,  560. 
of  real  estate,  42,  167,  177,  196-321,  328j,  337,  427,  438,  812,   1082, 

1091. 
broker  not  entitled    to    commission    for    procuring    to    irresponsible 

party,  22 If. 

broker  barred  commission  where  not  renewed,  206a. 
broker  entitled  to  commission  though  tenant  defaulted,  207a. 
to  another  party  not  a  renewal,  212a. 

when  made  by  owner  and  tenant,  broker  barred  commission,  214a. 
building  destroyed  before  signed,  broker  barred  commission,  216b. 
acceptance  of  by  owner's  lawyer  entitles  broker  to  commission,  221c. 
broker  entitled  to   commission    on    one   secured   against    instructions, 

221d. 

when  broker  not  entitled  to  any  part  of  commission  paid  other  bro- 
ker, 221e. 

not  executed,  broker  barred  commission,  499d. 
Legacies,  real  estate  broker's  commission  for  selling  proper  charge  against, 

34. 
Lender,  refusing  to  consummate  loan,  broker  not  entitled  to  commission, 

224. 

broker  held  not  to  be  agent  of,  256. 
bound  by  fraud  of  agent,  268. 

Lessee,  broker  to  procure  not  entitled  to  commission  for  option,  93. 
broker  of,  securing  lease  to  himself,  holds  as  trustee,  203. 
broker  entitled  to  commission,  for  procuring,  204. 


1020  INDEX. 

[References  are  to  sections.] 

Lease,  broker  to  procure  not  entitled  to  commission  for  option — Continued. 
broker  procuring  one  who  buys  not  entitled  to  commission,   198a. 
where  proposed   failed   to   give  security,    broker   barred    commission, 

216d. 
although   one   procured   by   broker   joined   with    co-lessee    in   making 

lease,  entitled  to  commission,  221b. 
broker  liable  in  damages  for  assuring  responsibility  of  irresponsible, 

271a. 

lessor,  cannot  refuse  to  accept  lease  and  defeat  broker's  right  to  commis- 
sion, 197. 

broker  for  tenant  has  no  claim  on  for  commission,  208. 
right  under  receipt  not  affected  by  broker's  secret  understanding,  221. 
Letter.     See  CORRESPONDENCE. 
Liability  of  agent  to  principal. 

for  fraud  of  third  persons  in  privity,  314,  318. 

for  interest  on  money  received  and  not  invested,  322. 

for  negligently  failing  to  deduct  proper  amount  from  purchase  money, 

270a. 

for  understating  price  obtainable,  290,  412a. 
for  amount  of  price  withheld,  290,  309,  314,  321,  404,  414,  456,  481, 

572,  630. 

for  appropriating  all  the  purchase  money,  314. 

for  fraudulent  conduct,  subject  to  action  for  breach  of  contract,  414. 
for  overstating  price  of  purchase,  may  be  sued  for  excess,  298,  314,  806. 
for   buying   property   for   himself   and   imposing   on   buyer   at   higher 

price,  47. 
for    representing    persons   adversely    interested,    loss    of    commissions 

290,  321,  388. 

for  fraud  of  sub-agent,  316,  390. 

to  refund  commissions  when  he  has  acted  in  bad  faith,  323,  382,  674. 
for  profits  improperly  realized,  314. 
for  loaned  money  lost  on  insufficient  security,  229. 
for  money  lost  through  negligence,  230,  349. 
for  loss  incurred  through  departing  from  instructions,  350. 
for  clerk  wrongfully  buying  principal's  property,  301. 
for  loss  arising  from  not  recording  mortgage,  260,  349. 
for  loss  arising  from  loan,  when  examination  of  title  undertaken,  261. 
for  loss  through  improper  concealment,  291,  314. 

for  concealing  name  of  purchaser  for  fear  owner  would  advance  price,  291. 
for  having  interest  in  property  and  concealing  same,  291,  314. 
for  concealing  relations  to  lessee  and  asking  lessor  to  reduce  rent,  558. 
for  sub-agent  concealing  his  relations,  291,  588. 
for  concealing  purchaser's  name  and  substituting  fictitious,  41. 
for  representing  both  parties,  unless  both  knew,  208,  290,  314,  559. 
for  whether  principal  prejudiced  or  not  rule  applies,  559. 
for  appropriating  money  collected,  40,  314,  630,  642. 


INDEX.  1021 

[References  are  to  sections.] 

Liability  of  agent  to  principal — Continued. 

for  willfully  disregarding  material  obligations,  22,  40,  41,  291,  298, 

314,  321,  415. 

for  misrepresentation  as  to  incumbrances,  313. 
for  negligence  in  procuring  loan,  235,  431. 
for  negligence  in  not  reporting  offer,  312. 
for  loss  from  second  mortgage,  264,  349. 
for  loss  of  trade  through  negligence,  346. 
for  fraud,  175a,  314,  499b. 

for  importuning  to  reduce  price  to  buyer,  314,  320, 
for  failing  to  disclose  best  terms,  412,  412a. 
for  inducing  customer  to  forfeit  contract,  313,  462. 
for  acting  in  bad  faith,  183,  290,  291,  314,  462. 
for  taking  title  and  refusing  to  convey,  35,  4G2,  5f*0. 
for  profit  in  reselling,  139,  299,  1089. 

for  representing  worthless  property  as  good  security,  229. 
for  money  paid  by  purchaser  and  forfeited,  462,  630. 
for  acting  in  the  interest  of  the  opposite  party,  295. 
for  advantage  derived  from  violation  of  duty,  290. 
for  placing  cloud  upon  title,  514. 

for  taking  insufficient  security  for  deferred  payments,  300. 
for  appropriating  money  to  pay  off  mortgages,  273,  314. 
for  securing  land,  under  warrants,  for  less  than  value,  338. 
for  negligently  taking  mortgage  under  wrong  description,  207,  899. 
for  failing  to  learn  exact  liability  under  mortgage,  270,  349. 
for  understating  mortgages,  41. 
for  failure  of  purchaser  to  execute  mortgage  and  make  cash  payment, 

274,  556. 

for  negligently  overpaying  vendor,  349. 
to  account  on  sale  of  trust  property,  35. 
as  member  of  purchasing  syndicate  not  entitled  to  commission,  29, 

38,  405. 

for  tax  title  acquired,  294. 

sub-agent  unable  to  recover  share  of  unlawful  commission,  522. 
for  property  acquired  at  grossly  inadequate  price,  291. 
for  erroneous  rental  statement,  558. 
for  money  received  from  a  purchaser,  559. 
for  failure  to  insure  principal's  property,  325. 
for  improperly  acquiring  principal's  property,  57,  290. 
for  secretly  purchasing  with  ostensible  buyer,  314. 
for  pool  to  divide  commissions,  371. 
for  buying  what  he  was  employed  to  sell,  558. 
for  fraudulent  act  of  guardian,  62. 
for  deed  improperly  secured,  57. 
for  deeds  improperly  secured  and  money  appropriated,  57,  314. 


1020  INDEX. 

[References  are  to  sections.] 

Liability  of  agent  to  principal — Continued. 

for  note  improperly  taken  and  assigned,  572. 

for  improperly  entering  satisfaction  of  judgment,  238,  1068. 

for  money  paid  on  mortgages,  243,  269. 

for  the  sufficiency  of  the  security,  403. 

for  loan  defeated  through  wrong  dimensions,  known  to  broker,  249. 

for  bonds  declared  illegal,  276. 

for  principal's  debt  paid  from  rent  receipts  without  authority,  386. 

for  selling  at  lower  price  than  authorized,  408. 

for  violating  instructions,  299,  300. 

for  failure  to  collect  interest  due,  270a. 

for  assuring  responsibility  of  irresponsible  lessee,  -271  a. 

for  interest  acquired  adverse  to  principal,  678a. 
Liability  of  agent  to  third  persons. 

for  fraud  upon  lender,  268. 

for  employing  sub-agent  without  authority,  24,  393,  398,  519. 

for  contracts  made  in  his  own  name,  41,  43,  76a,  383. 

for  unauthorized  sale  of  real  estate,  300,  307b. 

for  fraud  in  negotiating  contract  of  sale,  315. 

for  fraud  in  fiduciary  capacity,  311. 

for  misrepresenting  incumbrances,  315. 

for  excess  paid  by  purchaser,  314. 

for  excess  paid,  that  owner  would  not  sell  for  less,  298 ;  contra,  25,  456. 

for  fraud,  319. 

for  fraud  upon  the  court,  314. 

for  acting  for  undisclosed  principal,  279,  291,  601. 

for  money  to  be  repaid  if  sale  failed,  383. 

to  purchaser  for  money  received  in  bad  faith,  642c. 

for  bonds  sold  without  disclosing  principal,  279. 

for  purchasing  prpperty  without  disclosing  principal,  588a. 

for  personal  property  withheld,  290,  315. 

on  warranty  of  authority  to  sell,  300. 

for  money  before  paid  to  principal,  385. 

to  vendee  for  purchase  money,  298,  321. 

for  excess  over  price  asked  by  vendor,  456. 

for  fraudulent  representations  involving  a  nominal  owner,  42,  315,  319. 

for  stipulation  beyjond  scope  of  authority,  560. 

to  refund  purchase  money  on  repudiation  of  contract,  563. 

for  deceiving  purchaser  as  to  commissions,  315. 

for  value  of  bonds  criminally  put  on  sale,  38,  574. 
Liability  of  principal  to  agent. 

for  commissions.     See  COMMISSIONS  AND  COMPENSATION. 

for  connivance  with  sub-agent  in  fraud  of  agent,  316. 

to  compensate  sub-agent  for  sale  made  after  revocation,  521. 

to  compensate  if  agency  revoked  after  broker  has  buyer,  22. 


INDEX.  1023 

[References  are  to  sections.] 

Liability  of  principal  to  agent — Continued. 

to  compensate   if   agency   wrongfully   repudiated,    23,   299,   300,    317, 
362,  454. 

agent  or  broker  rendering  valuable  service  may,  on  revocation,  «u« 
for  breach,  299. 

administrator  employing  broker  personally  responsible,  34. 

for  commission,  when  he  paid  wrong  broker,  318. 

for  commission,  on  conveying  property  to  defeat  liability,  317,  487a. 

for  price  of  property  purchased,  588a. 

for  commissions,  on  appropriating  benefits,  24,  557. 

for  commissions,   on   appropriating  benefits,  where  employed   by   un- 
authorized third  persons,  24. 

to  broker,  if  he  knew  sub-agent  violated  instructions,  42,  316,  317. 

for  revoking  authority  to  collect  rents,  22. 

for  services  in  purchasing,  although  guilty  of  constructive  fraud,  23. 

for  warranty  of  authority  to  employ,  328n. 

what  he  must  do  to  escape  liability  for  commission,  331. 

when  he  cannot  escape  liability  for  commission,  362. 

when  paying  one  broker  no  further  liability  attaches,  370. 

liable  for  commission  on  taking  land  in  lieu  of  cash,  369. 

when  liable  on  refusing  to  sell  for  commission,  374. 

when  not  liable  for  commission  on  refusing  to  sell,  375. 

on  release  of  vendee  liable  to  broker  for  commission,  380. 

tenants  in  common  jointly  liable  for  commission,  407. 

for  misrepresentations  defeating  sales  for  commission,  454,  572. 

for  commission  depends  upon  real  parties  to  bargain,  487a. 

for  commission  on  changing  gross  to  net  in  contract,  485. 

for  share  of  profit  on  wrongful  sale  by  sub-agent,  497. 

for  commission  on  sale  at  lower  price,  unless  fixed  price  required,  502, 

for  half  of  remaining  unsold  land,  379. 

for  misleading  customer  to  buy  through  another  agent,  444. 

for  interfering  to  injury  of  broker,  444. 

for  commission  for  sale  effected  by  interfering  broker,  444. 

for  revoking  authority  and  selling,  444. 

three  brothers  acting  for  family,  to  broker  for  commissions,  407a. 

when  corporation  not  for  commissions,  1075c. 
Liability  of  principal  to  third  persons. 

for  injuries  through  negligence,  42,  347. 

for  fraud  of  agent  through  misrepresentations,  29,  99,  313,  314,  315. 

for  fraudulent  misrepresentations  of  sub-agent,  316. 

for  commissions  paid  broker  by  opposite  party,  163. 

for  fraud  of  agent  to  extent  of  benefits  received,  36.  99,  316,  329,  856. 

for  loan  lost  through  fraudulent  knowledge  of  agent,  62,  268. 

for  sale  revoked  on  suit  of  vendee,  22,  130,  298,  404. 

on  note  and  mortgage  executed  by  authorized  agent,  23. 

to  purchaser  for  money  paid  to  agent,  299,  384,  385. 


1024  INDEX. 

[References  are  to  sections.] 

Liability  of  principal  to  third  persons — Continued. 

to  purchaser  for  money  paid   agent  after   hie  authority  withdrawn, 
41,  53. 

what  he  must  do  to  escape  liability,  331. 

to  purchaser  for  shortage  in  acreage,  299. 

when  for  act  of  insane  agent,  347a. 

bound  by  representations  by  agent  to  purchaser  of  location  of  land, 

451a. 
Liability  of  third  persons  to  agents. 

employing  broker  without  disclosing  principal,  222,  398. 

vendor  on  refusing  to  sell,  for  commissions  lost  from  principal,   300. 

purchaser     for  commissions  on  agreement  of  non-interference,  21. 

purchaser,  for  commissions,  although  broker  had   agreed   to  look   to 

vendor,  588. 
Liability  of  third  persons  to  principal. 

party  cognizant  of  agent's  concealment  can  not  hold  property  against 

principal,  291. 
.  vendor  for  commissions  paid  purchaser's  agent,  40,  290. 

for  profits  realized  through  fraud  of  agent,  35,  314. 

for  commissions  paid  broker,  from  party  in  default,  163. 

for  commissions  paid  wrong  agent  through  misconduct  of  vendee,  318. 
Liability  between  third  persons 

nominal  owner  to  purchaser  for  fraud  of  owner  and  broker,  42,  315,  319. 

R.  R.  company  for  bonds  criminally  released  from  registry,  38,  574. 

joint  owner  w.rongfully  acquiring  moiety,  319. 

joint  owner  for  benefits  received  through  fraud  of  agent,  329. 
License  by  State  or  municipal  authority,  9,  124,  558,  576,  604,  628,  631, 
800,  1037. 

to  cut  timber  beyond  power  of  broker,  330. 

a  single  sale,  not  doing  business  to  require  a,  576. 

internal  revenue,  576. 

auction  sale  does  not  require  a,  576. 
Lien,  equitable,  29. 

broker  has  for  commission  on  securities  in  his  hands,  283. 

broker  has  for  fees  on  funds  to  loan  in  his  hands,  284. 

in  the  absence  of  contract,  broker  without  lien,  285. 

where  broker  has,  it  exists  only  while  he  holds  property,  286. 

of  broker  confined  to  securities  affected,  287. 

broker  has  none  for  loan  on  trust  estate,  288. 

expense  of  releasing  falls  en  principal,  289. 

commissions  assumed  by  vendee  not  a  lien  on  property,  289a. 

demand  of  $10,000  to  release  defeated  commissions,  514. 

broker  entitled  to  commission  for  exchange  defeated  by  failure  to  pay 
off,  177a. 

broker  denied  right  to  assert  when  exchange  defeated  by  fraud,  284a. 

broker's  on  purchaser's  interest  not  enforceable,  289b. 


INDEX.  1025 

[References  are  to  sections.] 

Lien,  equitable — Continued. 

what  plaintiff  must  show  to  enforce  for  commission,  289c. 
Limitations  and  restrictions,  12,  14,  577. 
Limitations,  Statute  of.     See  STATUTE  OF  LIMITATIONS. 
Litigation  by  third  persons,  473. 
Loan,  broker  for  seller  obtaining  to  buyer   from   seller,  not  entitled  to 

commission  from  buyer,  232. 

broker  procuring  agreement  to  make  insufficient,  225a. 
broker   procuring   less   than   asked,   accepted,   entitled   to   commission, 

233,  429. 

broker  entitled  to  commission  on  finding  lender,  22Ca,  234,  430. 
broker  not  reporting  barred  commissions,  235,  431. 
in  action  for  commissions  for  procuring  not  necessary  to  prove  tender, 

236. 

admissibility  of  correspondence  to  establish  agency  in  making,  237. 
broker  entering  release  of  judgment,  improper  to  submit  question  to 

jury,  238. 
broker's  authority  to  provide  mortgage  for  confined  to  land  designated, 

239. 
principal  curing  defect  in  title,  lender  then  refusing,  broker  entitled 

to  commission,  240. 

not  made,  broker  must  prove  title  not  good,  240a. 
broker  charging  more,  entitled  to  statutory  commission  for  making,  241. 
Loan,  broker  entitled  to  commission  for  procuring,  though  principal  refuses 

to  take,  242. 

broker  not  entitled  to  commission  unless  loan  made,  242a. 
broker  to  whom  borrower  paid  commission  his  agent,  243. 
money  put  in  bank  subject  to  broker's  check,  not  agent  of  lender,  244. 
owner  himself  securing,  not  liable  to  broker  for  commission,  245. 
owner  refusing  on  one  ground  to  take,  subsequently  estopped  to  set 

up  another,  246. 
broker   failing   to    secure,    principal    securing   from   same   party   bars 

commission,  247. 
broker  to  examine  title  and  secure  loan  barred  commission  on  failure 

by  defect  in  title,  248. 
defeated  through  wrong  dimensions  known  to  broker  bars  commission, 

249. 

error  to  grant  full  commission  when  failure  by  defect  in  title,  250. 
interest  in  land  to  attorney  for  procuring,  251. 
verdict  for  broker  for  procuring  set  aside,  252. 
agreement  as  to  commission  for  procuring  a  question  for  jury,  253. 
to  purchaser  on  other  property  makes  seller's  broker  his  agent,  254. 
broker  to  procure,  not  authorized  to  collect  principal  or  interest,  255. 
builder's,  282. 

broker  procuring  for  trust  estate  has  no  lien  thereon,  288. 
payable  in  gold,  575. 


1026  INDEX. 

[References  are  to  sections.] 

Loan,  broker  entitled  to  commission,  etc. — Continued. 

broker  required    to    furnish    in    reasonable    time    after    receiving    ab- 
stract, 228a. 

broker  who  acts  for  both  parties  entitled  to  commission,  232a. 

broker  not  entitled  to  commission   for  loan  defeated  by  misrepresen- 
tations of  borrower,  249a. 

broker  to  procure  loan  may  purchase  land  at  mortgage  sale,  255a. 

broker  to  procure  without  authority  to  transfer  principal's  note  and 

mortgage,  337c. 

Loan  company,  securities  payable  at,  not  thereby  agent  to  collect,  257. 
Loans  on  real  estate,  71,  222-254,  564,  566,  575,  818,  1093. 
Loan,  one  employing  broker  to  obtain  liable  for  commission,  222. 

when  refused  for  bad  title  broker  not  entitled  to  commission,  223. 

when  lender  refused  to  consummate,  broker  not  entitled  to  commission, 
224. 

when  broker  not  entitled  to  commission  for  conditional  loan,  225. 

procuring  agreement  to  make  not  the  same  as  procuring  a,  225a. 

broker  to  recover  for,  must  show  on  terms  authorized,  226. 

on  question  of  commission  former  agreement  ignored,  227. 

reasonable  value  of  broker's  services  for  may  be  shown,  228. 

broker  liable  for  loss  on  insufficient  security,  229. 

broker  bound  to  make  good  money  lost  through  his  negligence,  230. 

bill  for  services  for  procuring  separated  to  see  if  reasonable,  231. 
Loss,  recovery  should  be  limited  to  the  actual,  572. 
Lots,  power  to  sell  in,  6,  18,  340,  494,  587,  961. 

sold  out  of  order,  broker  not  entitled  to  commission,  307c. 


M 

Maker,  when  and  where  warranted  in  paying  note,  353. 
Manner  in  which  written  contracts  with  brokers  should  be  construed,  G02a. 
Measure  land,  employment  to  does  not  sustain  claim  for  selling,  594. 
Meeting  of  minds,  33,  73,  290,  293,  305,  557,  630,  838b,  929b,  969. 
Memorandum,  insufficient  to  satisfy  statute,  606. 

sufficient  to  satisfy  statute,  590. 

signed  by  auctioneer  binds  buyer  and  seller,  30. 

admissible  in  evidence,  734. 

Mental  capacity,  want  of  to  employ  broker,  200. 
Methods  of  earning  commission's,  474. 

of  payment,  478,  479a. 
Michigan,  contract  to  sell  land  must  be  in  writing,  79b. 

doctrine  of  quantum  meruit  on  entire  contracts,  f>46a. 
Middleman,  36,  320,  475,  557,  559,  578,  578a,  602e,  626,  875,  977,  1088. 


INDEX.  1027 

[References  are  to  sections.] 

Mine,  sale  of,  12,  24,  34,  111,  300,  314,  315,  476,  559,  572,  601. 
Mineral  and  gas  deposits,  719b,  1025. 
Minor,  guardian  of,  57,  62,  220. 
Miscarriage  of  notice,  454,  458. 

of  sale  without  fault  of  principal,  122. 
Misconduct  of  broker,  313. 

Mislead,  whether  plaintiff  attempted  to  question  for  jury,  920. 
Misrepresentations,   40,   41,    165,    183,   290,   296,   298,   299,   313,   315,   318, 

320,  328n,  451,  454,  514a,  572,  601,  862a. 

Mississippi,  doctrine  of  quantum  meruit  on  entire  contract,  546a. 
Missouri,  contract  with  broker  to  sell  land  must  be  in  writing,  590. 

contract  to  sell  lands  must  be  in  writing,  79b. 

doctrine  of  quantum  meruit  on  entire  contracts,  546a. 
Mistakes,  181,  321,  341,  341a,  390a. 

unless  pleaded  and  proved  joint  purchaser  bound  for  whole  commis- 
sion, 579. 

Misunderstanding  of  contract  by  principal,  557. 
Modifications,  22,  24,  411,  41  la,  458,  477,  479,  906a,  943a,  954a, 
Money,  broker  to  sell  can  take  nothing  else,  342. 

broker  has  no  right  to  receive  Mexican,  343. 

broker  for  seller  accepting  from  purchaser  against  public  policy,  559. 

received  by  broker  from  purchaser  belongs  to  principal,  559. 

broker  advancing  and  taking  deed  to  self,  holds  absolutely,  368. 

broker  to  sell  includes  authority  to  receive  purchase,  328e,  f. 

discharging  trust  by  returning  earnest,  295a. 

owner  allowed  that  withheld  by  broker,  but  denied  recovery  of  com- 
mission paid,  554a. 

petition  for  commission  from  collections  must  aver  their  sufficiency, 
653a. 

counts.    See  COMMON  COUNTS. 

Moral  obligation,   supports   subsequent  written  promise  to  pay  commis- 
sions, 590. 

sufficient  consideration  to  collect  note  on  void  contract,  433d. 
Mortgages,  41,  239,  258-275,  314,  386,  483,  558,  1051. 
Mortgage,  authority  to  provide  confined  to  land  designated,  239. 

purchaser  bound  by  agent's  knowledge  and  can  not  dispute,  258. 

mortgagee's  right  to  have  reformed,  258. 

broker  selling  under  power  in  need  not  inform  mortgagor,  259. 

broker  failing  to  record  liable  for  loss,  260. 

broker  failing  to  secure  extension  of,  54. 
Mortgage,  broker  liable  for  loss  through  unpaid,  261. 

broker  not  entitled  to  charge  expenses  for  foreclosing  personal  mort- 
gage  to   principal,    262. 

power  to  sell  does  not  include  power  to,  263. 

broker  to  invest  money  confined  to  first,  264. 

broker  making  loan,  knowing  of  prior,  principal's  subordinated,  265. 


1028  INDEX. 

[References  are  to  sections.] 

Mortgage,  broker  liable  for  loss  through  unpaid — Continued. 
power  to  purchase  gives  none  to  secure  by  mortgage,  266. 
whether  agent  taking  by  wrong  description  guilty  of  negligence  ques« 

tion  for  jury,  267. 

taken  by  lender  bound  by  fraud  of  agent,  268. 
payment  on  to  seller's  agent  did  not  bind  mortgagee,  269. 
broker  liable  for  negligence  in  failing  to  learn  liability  under  a,  270. 
broker  liable  for  loss  on  taking  on  other  and  not  on  land  sold,  271. 
broker    securing   conditional    sale   of,   not   consummated,   not   entitled 

to  commission,  272. 

fraud  of  broker  in  appropriating  money  to  pay  off,  273. 
failure  of  purchaser  to  execute  mortgage  barred  commission,  274. 
in  computing  commission  mortgage  treated  as  part  of  price,  275. 
authority  to  sell   for  specific  sum  did  not  authorize  part  cash  and 

mortgage,  422. 

broker  to  procure  loan  may  buy  at  mortgage  sale,  255a. 
when  borrower  entitled  to  cancellation  of  note  and,  255b. 
when  to  be  given  owner  entitled  to  know  the  purchaser,  274b. 
when  should  not  be  added  to  increase  broker's  commission,  275a. 
broker  without  authority  to  transfer  principal's  note  and,   337c. 
waiver  by  party  to  exchange  that  other  assume,  515f. 
when  owner  entitled  to  money  which  should  have  been  paid  on,  572. 
Mortgagee's  interest  in  property,  274a,  539. 
Motions,  666,  666a. 

N 

Name  of  purchaser,  concealment  of  by  broker,  291,  314,   446,  487,   525, 

530,  530a. 
Nebraska,  valid  conveyance  or  enforceable  contract  to  entitle  broker   to 

commission,  41,  1129a. 

contract  with  broker  to  sell  land  must  be  in  writing,  590. 
doctrine  of  quantum  meruit  on  entire  contract,  546a. 
contract  to  sell  lands  must  be  in  writing,  79b. 
Necessary  allegations  and  proof  to  enable  broker  to  recover  commission, 

637a. 

Negative,  proposition  not  proved  until  inconsistent  with,   582. 
Negligence,   230,   260,   261,   267,   270,   271,   325,   346,   347,   347a,   349,   572, 

899,  913. 
Negotiations,   where  neither   broker    selling  nor   principal   had   notice   of 

other's,  489. 

owner  misleading  customer  to  buy  through  another  liable,  444. 
owner  breaking  into  and  selling  to  customer  liable,  444. 
unauthorized  not  ratified  by  sale  to  customer,  415,  443. 
with  two  jointly,  sale  by  owner  to  one  bars  commission,  432. 


INDEX.  1029 

[References  are  to  sections.] 

Negotiations,  where  neither  broker,  etc. — Continued. 

with  one,  and  sale  by  owner  to  him  and  another  bars  commission, 
437. 

not  ripening  into  contract  broker  denied  commission,  458a. 
Net  rental,  meaning  of  the  term,  171. 

price,  481,  482,  483,  484,  485. 

Neutral,  principal  may  remain  as  to  broker's  claims  for  commission,  581. 
New  Hampshire,  contract  to  sell  land  must  be  in  writing,  79b. 
New  Jersey,  contract  to  sell  land  must  be  in  writing,  79b. 

contract  with  broker  to  sell  land  must  be  in  writing,  576,  590. 
New  York,  contract  with  broker  to  sell  land  must  be  in  writing,  590. 
New  trial,  error  to  grant  to  set  up  exercise  of  option,  111. 
Nominal  sale,  broker  not  entitled  to  commission  for.  116. 

damages,  when  broker  restricted  to  recovery  of,  300,  358,  563. 

purchaser,  487,  607. 

owner,  315,  319. 
Non-performance,  488. 
Non-suit,  865,  1075a. 
Non-resident  employing  broker,  11,  42,  328a. 

owner,  one  buying  from  through  agent  bound  to  ascertain  extent  of 
authority,  18. 

purchaser,  314. 

Notes,  promissory,  255b,  314,  337c,  351,  352,  353,  354,  355,  356,  357,  461, 
433d,  462,  483,  566,  572,  574,  584a,  817a,  817b,  1047. 

purchase  money,  duty  of  principal  to  collect,  420. 
See  also  PURCHASE  MONEY. 
Notice,  telegraph  company  not  agent  of  owner,  80. 

to  partnership  of  revocation  of  authority,  37. 

when  not  necessary,  259,  799. 

terminating  agency,  15. 

how  must  be  given  to  bind  principal,  359. 

to  principal  by  broker  on  finding  customer,  360,  471,  632a. 

when  waived,  361. 

of  revocation,  15. 

miscarriage  of,  454,  458. 

absence  of  deprives  of  right  to  commission,  489. 

principal  selling  before  expiration  of  time  without,  490. 

immediate  means  in  a  reasonable  time,  580. 

failure  to  instruct  as  to  not  error,  1009a. 

in  an  exchange  knowledge  by  broker  of  taxes  not  notice  to  the  other 
party,  36. 

of  customer  by  broker,  and  sale  after  by  owner,  454. 
Novation,  425,  557,  560,  588,  1096. 
Null  and  void,  57,  59,  279. 

See  also  VOID. 
Nudum  pactum,  19.  42,  174,  303,  462. 


1030  INDEX. 

[References  are  to  sections.] 

o 

Object,  defendant  can  not  when  sale  for  less  than  broker  claims,  827. 
Objection  to  price  of  horse  and  sale  by  vendor  to  another,  broker  entitled 
to  commission,  454. 

after  acceptance  that  purchaser  unable  to  pay  unavailing  to  defeat 
commission,  454. 

to  terms  of  sale  evidence  that  conformed  to  directions  given,  368. 
Objectionable,  instruction  not,  as  submitting  an  issue  not  pleaded,  932. 
Obligation,  release  of  vendee  from,  380. 
Obligations,  plaintiff  bears  burden  of  proving  discharge  of,  716. 

owner  not  under  to  extend  time  to  broker,  15. 

of  married  woman  under  Pennsylvania  law,  39. 

broker  disregarding  cannot  recover  commission,  290. 

fraud  of  agent  relieved  principal  from,  314. 

purchaser  putting  lot  to  objectionable  use,  did  not  relieve  from  to  pay 
broker,  557. 

when  not  relieved  from  to  broker  for  commission,  42. 

See  also  DUTY. 
Offer  to  pay  broker,  when  it  does  not  show  employment,  173. 

failure  of  broker  to  report,  31° 

sub-agent  obtaining  in  advance  of  bids,  395. 

reporting  in  excess  of  that  given,  491. 

of  same  amount  previously  made  by  proposer  to  owner,  568. 
Office  of  lender,  note  payable  at  not  authority  to  collect,  566. 
Ohio,  contract  to  sell  land  must  be  in  writing,  79b. 
Opinion  in  writing  of  customer's  attorney  admissible  in  evidence  to  show 

defect  in  title,  730a. 
Opinions,  as  evidence,  730a,  776,  776a,  825,  975a. 

public,  intensifying  insufficient  consideration,  21. 
Options,  sales,  exchanges,  leases,  loans,  etc.,  pt.  2,  Sec.  82-289a. 
Options,  23,  34,  38,  79,  82-111,  199,  314,  485,  557,  691a,  691b,  1033,  1061. 

contract  to  take  over  net  price  an  agency,  not  an,  82,  1083. 

broker  to  procure  entitled  to  recover  compensation,  83. 

subject  to  revocation,  principal  liable  to  broker  on  finding  purchaser, 
84. 

broker  to  sell,  procuring  mere,  not  entitled  to  commission,  85. 

customer  exercising,  broker  entitled  to  commission,  86,  96. 

where  principal  held  only  at  time  of  sale,  his  liability,  87. 

broker  who  took  to  buy,  not  agent  to  sell,  88. 

exercise  of  revokes  contract  of  agency  to  sell,  89. 

agreement  to  sell,  etc.,  a  mere,  90. 

sale  by  owner  subject  to,  not  breach  of  contract,  91. 

on  sale  under  an,  broker  not  entitled  to  commission,  92. 

broker  to  procure  lessee,  not  entitled  to  commission  for,  93. 


INDEX.  1031 

[References  are  to  sections.] 

Options  — Cont  inued. 

owner  concluding  for  whole  tract,  may  refuse  offer  for  part,  94. 

subject  to  withdrawal,  no  commission  earned,  95. 

contract  of  exchange,  held  a  mere,  97. 

when  co-agent  not  bound  by,  98. 

and  title  bond  to  insure  sale,  99. 

at  best  price,  means  satisfactory  to  purchaser,  100. 

unexercised,  subsequent  sale,  broker  not  entitled  to  commission,  101. 

broker  to  secure  two,  principal  rescinds  one,  liable  for  breach,  102. 

broker  not  entitled  to  commission  for  procuring  part  of,  103. 

broker  obtaining  price  from  owner,  a  naked,  104. 

given  and  extended,  broker  acting  as  purchaser,  105. 

error  to  prevent  defendant  showing  how  made  to  purchaser,  106. 

defendant  giving  broker,  estopped  to  claim  purchaser,  107. 

defendant  may   show   purchaser   took   subject   to    securing   adjoining 

lot,  108. 

what  owner  may  show  to  corroborate  claim  of,  109. 
held  not  expired  when  sale  made  by  owner,  110. 
error  to  grant  new  trial  to  set  up  exercise  of,  111. 
to  lease  not  exercised  by  taking  at  lower  rental,  199. 
broker  to  secure  lessee,  not  entitled  to  commission  for  securing,  209. 
power  to  sell  does  not  include  power  to  give  an,  337b. 
evidence  showing  contract  an,  and  not  a  sale,  691a,  691b. 
construed  a  contract  of  sale,  and  not  an,  82a. 
contract  of  not  within  the  statute  of  frauds,  83a. 
to  purchase  as  well  as  to  sell,  84a. 
construed  a  contract  of,  85a. 
death  of  owner  before  exercise  of  did  not  bar  broker's  commission, 

85b. 

owner  giving  entitled  broker  to  commission,  89a, 
though  word  "option"  used,  held  a  contract  to  sell  real  estate,  90a. 
holder  of  not  necessarily  an  agent  to  sell,  104a. 
broker  having  may  sell  for  more  without  accounting,  105a. 
broker  not  entitled  to  commission  after  principal  gives  an,  108a. 
contract  held  to  be  both  an  option  and  brokerage,  HOa. 
to  sell  realty  denned,  113b. 

change  of  sale  to  accepted  by  broker  did  not  bind  principal,  427a. 
broker  selling  more  than  authorized  by,  299. 
owner  entering  into  instead  of  sale  to  broker's  customer,  450. 
contract  of  not  capable  of  specific  performance,  462. 
Oral  agency  may  be  withdrawn  by  parol,  22. 

action  ex  delicto  maintainable  on  parol  contract,  79d. 
agreement  to  act  as  sales  manager  upheld,  162a. 
contracts  may  be  made  by  brokers  between  themselves.  371a. 
written  agreement  to  sell  realty  can  not  be  modified  orally,  411a. 


1032  INDEX. 

[References  are  to  sections.] 

Oral  agency  may  be  withdrawn  by  parol — Continued. 

contract  can  not  take  property  out  of  hands  when  held  by  written, 
492b. 

agreement,  when  admissible  in  evidence,  321. 

contract  of  agent  sub-letting  unavailing,  213. 

contract,  broker  to  make  written  can  not  make,  363. 

authority,  broker  under  can  not  bind  by  written  covenants,  364. 

contract  of  broker  binds  unnamed  principal,  583. 

contract  followed  by  written,  492. 

evidence,  749,  749a,  769,  831,  833. 

Owner,  21,  42,  80,  81,  88,  89a,  92,  104,  105a,  109,  110,  125,  142,  142b,  169, 
210,  214,  222,  245,  246,  302a,  341a,  347,  370a,  399a,  409a,  413, 
416a,  450a,  451a,  476a,  479a,  481,  482,  485,  499c,  499e,  514a, 
554a,  596b,  602b,  612a,  612b,  624a,  692a,  695b,  696a,  699a. 


Parol.    See  ORAL. 

Part  cash  and  mortgage,  when  not  authorized,  422. 

Part,   on  concluding  option   for  whole  tract,  owner   justified   in  refusing 

offer  for,  94,  458. 
broker  entitled  to  commission  for  selling,  entitled  to  same  rate  for 

all,  495,  496. 

principal  must  accept  or  reject  as  an  entirety,  24. 
principal  can  not  defeat  commission  by  indirect  sale  of,  454,  458. 
knowledge  by  broker  that  principal  owns  but,  472. 
broker  to  sell  entire  tract  must  do  so  to  earn  commission,  496a. 
broker  barred   commission    for    selling   in   different   acreage   portions 

from  that  prescribed,  496c. 

Partial  payment,  broker  entitled  to  commission  on.  570. 
performance  insufficient  to  earn  commission,  509. 
payment  of  price,  when  must  be  shown,  557. 
performance  affords  no  right  in  equity,  589. 
Participancy  in  wrong,  absence  of,  497. 

in  exchange,  without  employment,  does  not  earn  commission,  162. 
Particular  point,   immaterial  if  principal  and   customer   agree  generally, 

557. 

Parties,  together,  bringing,  though  they  contract  on  different  terms,  532. 
to  the  bargain,  liability  to  broker  for  commission  depends  upon  real, 

487a. 

to  actions,  630,  656a. 

Partition,  sale  frustrated  through  failure  to,  broker  entitled  to  commis- 
sion, 508. 

Partnership,  22,  25,  37,  38,  313,  535,  563,  576,  584,  630,  689b,  760,  814. 
Payable  on  sale,  commissions  are,  498. 

when  contract  made  with  purchaser,  commissions  are,  499. 


INDEX.  1033 

[References  are  to  sections.] 

Payable  on  sale,  commissions — Continued. 

on  receipt  of  price,  broker  not  entitled  to  commission  before,  503. 

upon  completion  of  transaction,  commissions  are  usually,  504. 

note  at  office  of  broker,  not  entitled  to  collect,  566. 

commission  out  of  last  cash,  must  aver  same,  653. 
Payment  by  defaulting  vendee,  broker  entitled  to  commission  on,  500,  506. 

broker  entitled  to  excess  as  commission  from  first,  484. 
Payment,  contract  to  be  void  if  first  failed,  549. 
Payments,  deferred  not  collectible  by  broker,  112a. 

broker  not  entitled  to  commission  for  contract  differing  as  to  de- 
ferred, 503a. 

vendors  not  required  to  accept  checks  for,  420b. 

of  commissions  as  collections  made,  440a. 

written  contract  supercedes  rule  as  to  commission,  492c. 
Penal,  contract  held  to  be,  requiring  strict  construction,  585. 
Penalty  provided  exclusive,  576. 
Pennsylvania,  laws  of,  38,  576. 

contract  to  sell  lands  must  be  in  writing,  79b. 
Pension,  54. 
Performance,  mere  approval  of  contract  not  acceptance  of,  567. 

when  law  of  place  of  governs,  1128,  1129,  1129a. 

partial  entitles  broker  to  recover  neither  oa  contract  nor  on  quantum 
meruit,  509. 

recovery  without  showing,  641. 

where  broker  not  entitled  to  commission  as  for  full,  546. 

when  full  does  not  take  case  out  of  statute,  590. 

contract  by,  455,  567. 
Performed  his  undertaking,  broker  not  entitled  to  commissions  until  he, 

546.  556. 

Permanent  improvements,  42,  372. 
Personal  contract,  promise  by  administrator,  34. 

action  against  trustee,  35. 

acts  undelegatable,  4,  5. 

property,  when  broker  can  not  take,  290,  315. 
Petition  or  complaint,  160,  632-656d. 

defective,  160,  632e,  633,  634,  649,  650,  652. 

failing  to  prove  agreed  may  receive  reasonable  compensation,  639. 

demurrable,  632e,  643,  644,  648,  649,  649b,  650a,  654,  655,  656c,  659- 
665. 

insufficient,  643,  645,  649. 

failing  to  show  written  contract,  alleged  benefits  immaterial,  647. 
Plantation,  interpretation  of  broker's  authority  to  sell,  1124. 
Plat  and  sell,  a  contract  with  broker  to,  147,  570. 
Pleadings,  practice  and  judicial  constructions  and  interpretations,  Pt.  5, 

Sees.   559-1132. 
Pool  to  divide  commissions,  371. 


1034  INDEX. 

[References  are  to  sections.] 

Possession  undisputed  for  years,  authority  of  agent  presumed,  366. 

when  taking  ratifies  act  of  agent,  24. 

failure  of  owner  to  give,  454. 

Postal  card  insufficient  as  contract  with  broker,  601a. 
Postponement  by  purchaser,  365. 

Power  of  attorney,  18,  24,  26,  57,  63,  167,  202,  205,  259,  263,  266,  314, 
332. 

of  delegating  authority,  2. 
Power  of  attorney,  of  becoming  agents  inherent,  3. 

to  sell  does  not  include  to  cut  timber,  330. 

to  sell  does  not  include  to  lease,  202. 

confirming  sales  confers  power  to  sell,  332. 

to  do  all  things  concerning  real  estate  confers  authority  to  lease,  205. 

to  sell  land  acquired  afterward,  333. 

to  sell  land  sold  but  not  conveyed,  334. 

to  sell  land  on  credit  may  receive  payment,  335. 

to  sell  for  settlement,  when  not  violated,  336. 

to  sell  land,  not  to  lease  or  exchange,  337,  167. 

to  sell  land  not  power  to  give  an  option,  337b. 

to  locate  and  survey,  not  power  to  sell,  339. 

to  sell  in  lots,  cannot  sell  otherwise,  340. 

mutual  mistake  as  to  creates  no  liability,  341. 

unless  clothed  with  by  the  owner,  no  one  can  transfer  title,  413. 

to  sell  and  convey  land  includes  to  give  covenants  of  warranty,  417. 

in  other  States  power  must  be  specifically  conferred,  418. 

to  sell  does  not  warrant  contract  to  sell  and  convey,  418a. 
Practice,  points  of  in  actions  for  fraud,  321. 
Presumption  of  revocation  by  sale  of  property,  15. 

of  agent's  authority  by  undisputed  possession  for  years,  366. 

after  revocation  that  broker  acts  for  purchaser,  421. 

that  plaintiff  was  licensed  from  absence  of  evidence  to  the  contrary, 
576. 

that  agent  contracted  with  reference  to  usage,  599. 
.Presumptions,  in  general,  628. 
Preventing  bidding,  217,  441. 
Price  fixed,  12,  24,  42,  61,  142,  200,  422,  426,  502,  532a,  558,  559,  998. 

asking  and  obtaining  does  not  establish  employment,  17. 

when  lower  a  sufficient  consideration,  21. 

contract  to  take  beyond  net,  agency  and  not  option,  82. 

obtained  by  broker  a  naked  option,  104. 

increased,  broker  entitled  to  more  commission,  115. 

broker  buying  at  inadequate  by  fraud,  130. 

lower,  sale  by  second  to  client  of  first  broker,  141. 

where  broker  might  have  gotten  better,  not  entitled  to  commission,  290. 

mortgage  treated  as  part  of,  275. 

broker  understating  price  obtainable,  liable  to  principal  for  loss,  412a. 


INDEX.  1035 

[References  are  to  sections.] 

Price  fixed — Continued. 

broker  not  entitled  to  full  commission  until  paid,  470. 

broker  entitled  to  excess  as  compensation,  456. 

net  to  owner,  broker  does  not  take  the  excess,  481. 

net,  broker  selling  thereat  not  entitled  to  commission,  482. 

net  to  owner  and  note  for  excess  to  broker,  483. 

net,  broker  entitled  to  commission  from  first  payment,  484. 

owner  changing  gross  to  net  liable  for  commission,  485. 

commissions  payable  on  receipt  of,  503,  570. 

sub-agent  selling  at  reduced  not  entitled  to  commission,  524. 

broker  guilty  of  fraud  in  asking  reduction  of,  314. 

broker  secretly  learning  and  sending  customer,  399. 

broker  not  entitled  to  commission  for  sale  at  less,  426. 

principal  liable  for  commission  for  sale  to  customer  at  lower,  502. 

sub-agent  not  entitled  to  recover  for  sale  at  lower,  524. 

sub-agent  entitled  to  commission,  though  concealed  name  of  buyer, 
525. 

if  payment  of  necessary,  must  be  shown,  557. 

receipt  of  before  broker  entitled  to  commission.  570. 

reasonable  inferred  by  law,  610. 

broker  can  not  collect  fee  from,  373. 

when  told  by  broker  of  prospective  purchaser  owner  may  then  raise 
the,  477a. 

broker's  contract  required  owner  to  fix  within  a  reasonable  time,  612b. 
Prima  facie  evidence,  contract  signed  by  purchaser,  117. 

evidence  of  title,  contract  to  convey,  159,  190. 

case,  57,  866. 
Principal  and  agent,  15,  36,  51,  108a. 

broker  to  procure  loan  not  authorized  to  collect  interest,  252. 

approval  of,  47. 

signature  of  by  agent,  74,  75,  76,  77. 

what  he  must  do  to  escape  liability,  331. 

paying  one  broker  not  liable  to  another,  370. 

selling,  broker  may  recover  on  a  quantum  meruit,  511,  512. 

paying  commissions  before  purchaser  withdraws,  can  not  recover,  654. 
Privity,  11,  25,  35,  314,  318,  393,  454. 
Proceeds,  commissions  payable  from,  223,  495,  501. 
Procuring  a  purchaser.    See  FINDING  A  PTTBCHASEB. 
Procuring  cause  of  lease,  219. 

Procuring  cause  of  sale,  17,  25,  305,  443,  446,  471,  489,  507a,  743,  809b, 
934,  934a,  934b,  954,  994a,  1024,  1032. 

cases  where  broker  held  not  to  be,  292,  507. 
Procuring  cause  of  the  transaction  a  question  for  jury,  896. 
Profits,  when  broker  liable  to  principal  for,  23,  35,  139,  314,  329a,  565. 

when  principal  liable  to  broker  for,   16,  300,  320,  497,  497a,   1103, 
1104. 


1036  INDEX. 

[References  are  to  sections.] 

Profits,  when  broker  liable  to  principle  for — Continued. 

broker  to  have  part  of,  not  entitled  on  failure  by  defect  in  title,  535. 

broker  to  share  in  profits  not  a  partner,  584,  584a. 

anticipated  may  be  recovered  as  damages,  299,  300. 
Property,  description  of,  59. 

accepted  in  lieu  of  cash,  369,  376. 

broker  purchasing  not  entitled  to  commission  for  sale,  389,  558. 

fact  that  principal  does  not  own  does  not  bar  commission,  454. 

renting  of,  558. 

Proportionate  commissions,  440,  447,  493,  632a. 
Proposition,  counter,  56. 

not  proved  until  inconsistent  with  negative,  582. 

instruction  in  regard  to  erroneous,  968. 
Public  policy,  doctrine  of,  314,  559,  576. 
Puffing,  586. 
Purchase  money,  16,  41,  368,  373,  501.  See  also  NOTES  FOB. 

receipt  of  broker  for  bound  owner,  385a. 

when  receipt  for  not  performance  of  contract,  297. 

on  executing  contract  owner  entitled  to  paid  portion  of,  297. 

broker's  right  to  commission  not  defeated  because  to  be  paid  from,  501. 

paid,  repudiation  by  vendee  bars  recovery,  23. 

broker  without  authority  can  not  retain  commission  from,  373. 

failure  to  return  entitles  broker  to  commission,  454. 

privilege  of,  42,  200,  328 j. 

by  agent  for  himself,  circumstances  authorizing,  389c. 

Purchaser  or  vendee,  41,  84,  100,  105,  106,  107,  108,  117,  129,  131,  136, 
145,  146,  180,  254,  258,  329a,  380,  384,  385,  387,  388,  422b,  437a, 
450,  450a,  451a,  460,  465,  483a,  487,  499a,  515b,  515c,  596b, 
603a,  612c,  614a,  618b,  630,  695b,  715a,  716a,  719b. 

suing  to  recover  money  paid  to  vendor's  agent,  728a. 

bona  fide,  607. 

acting  for  another,  452,  487. 

ostensible,  "314. 

refusing  who  knew  right  length  of  lot,  broker   barred   commission, 
435. 

failure  of  to  carry  out  contract,  460. 

paying  more  than  authorized,  broker  entitled  to  commission,  505. 

each  bound  for  the  whole  commission  to  broker,  579. 


Q 

Quantity  contracted  for,  broker  entitled  to  commission  on,  423,  451. 

broker  not  entitled  to  full  commission  where  shortage  is  found,  451. 
purchaser  may  recover  for  shortage  in  acreage,  299. 


INDEX.  1037 

[References  are  to  sections.] 

Quantum  meruit,  partial  performance  insufficient  to  recover  on  contract 

or,  509. 

agent  procuring  responsible  tenant  entitled  to  recover  on,  510. 
principal  selling  to  customer,  broker  entitled  to  recover  on,  511. 
principal  selling  for  less  than  agreed  price,  broker  entitled  to  recorer 

on,  512. 

in  absence  of  express  contract,  broker  may  recover  on,  513,  632a. 
in  absence  of  fixed  rate  measure  of  broker's  compensation,  513a. 
in  some  States  recovery  may  be  had  for  partial  performance  on  a, 

546a. 

subject  of,  587. 
where  sale  not  consummated  broker  must  prove  negotiations  rendered 

fruitless  by  fault  of  land  owner,  in  order  to  recover  on  a,  637a. 
instruction  rightly  refused  that  if  entitled  to  anything  confined  to  a, 

1015. 

finding  in  an  action  on  a,  1049. 
finding  on  express  contract,  finding  againct,  1050. 

R 

Railroad,  38,  291,  526,  1000,  1005. 

Ranch,  454,  550,  1023. 

Ratification  of  contract,  24,  50,  57,  321,  557,  572,  619,  620,  620a,  621,  622, 

623,  624,  728a,  797,  858,  895,  1030. 
what  is  not  a,  18,  24,  295,  415,  458,  567,  618,  618a. 
once  made,  cannot  be  revoked,  24. 
Real  estate,  contracts  for  the  sale  of,  17. 
options  on,  82-111. 
sales  of,  112-148. 
leases  of,  196-221. 
loans  on,  222-257. 
mortgages  on,  258-275. 
liens  on,  283-289a. 

commission,  proper  charge  on  trust,  35. 

Reasonable  bill  for  extra  compensation,  examined  to  see  if,  231. 
care  in  selecting  sub-agent,  394. 
commissions,  items  paid  agents  shown  to  be,  35. 
corporation  liable  to  officers  only  for,  38. 
compensation,  broker  procuring  option  entitled  to,  83. 

broker  entitled  on  procuring  lease,  in  absence  of  special  contract 

to,  196. 

plaintiff  entitled  to  recover  excess  withheld,  less  a,  298. 
net  to  owner,  broker  selling  at  excess  entitled  to  a,  481. 
for  finding  a  purchaser  broker  entitled  ^to  a,  557. 
subject  of,  616. 
failing  to  prove,  may  recover,  639. 


1038  INDEX. 

[References  are  to  sections.] 

Reasonable  bill  for  extra  compensation,  examined  to  see  if — Continued. 

price  inferred  by  law,  610. 

time  within  which  a  power  must  be  accepted,  26. 
for  broker  to  perform  service,  612. 
employment  of  broker  continues  for  a,  612,  613. 
what  is  a,  611. 
when  immaterial,  614. 
what  constitutes  a,  1080. 

value  of  broker's  services  in  procuring  loan,  228. 

value  of  broker's  services    recoverable    in    absence    of    express    agree- 
ment, 615. 

Receipts,  41,  184,  221,  379,  383,  384,  385,  385a,  576,  772,  1072. 
Receiver,  62a,  314. 

Reciprocal  obligations  on  principal  as  well  as  on  agent,  290. 
Reconveyance  of  property,  301,  314,  607. 
Record,  260,  290,  540. 
Recoupment,  309,  321. 
Recovery  of  commissions,  564. 

of  money  from  broker,  642. 

of  commissions  without  showing  performance,  641. 

upon  implied  contract,  712a. 
Refunding  commissions,  320,  382,  572. 
Refusal  to  accept  loan,  242. 

to  take  because  customer  does  not  own,  154. 

to  exchange,  when  fraud  no  ground  for,  155. 

by  lessor  to  assign  lease,  216. 

of  purchaser  to  sign  contract  of  sale,  298,  458,  517,  534. 

of  owner  to  execute  contract  of  sale,  313,  374,  374a,  375,  454,  456. 

of  principal  to  appraise,  434. 

of  purchaser,  who  knew  real  length,  to  take  lot,  435,  451. 

of  purchaser  to  take  lot,  where  broker  knew  size,  451. 

of  wife  to  join  in  deed,  454. 
Reject  offer,  when  principal  can  not  and  escape  liability  for  commission, 

362. 

Rejected  contract  of  sale,  642*. 

Relations,  broker  and  sub-agent  similar  to  principal  and  agent,  519. 
Release,  19,  57,  238,  289,  297,  379,  380,  462,  514,  1068,  1099. 
Relief,  when  denied,  31?. 
Relinquishment,  515. 
Remark,  effect  of,  1090. 
Remedies.     See  ACTIONS. 

Remedy,  pursuing  one  barred  any  other,  414a. 
Reimbursement,  314,  595,  607. 
Rent,  22,  41,  199,  207,  314,  381,  381a,  386,  387,  510,  558,  827. 


INDEX.  1039 

[References  are  to  sections.] 

Renewal,  waiver  of  privilege  of,  206. 

lease  to  another  not  exercise  of  option  of,  212a. 

Repairs  broker  authorized  to  make,  not  permanent  improvement,  372. 
Reply,  612c,  630. 

that  was  not  a  ratification,  618a, 
Representations  as  to  dimensions  of  property,  451. 
Representative  capacity,  broker  not  liable  to  third  parties  for  his  acts 

in  a,  341b. 

Repudiation  or  rescission,  23,  24,  35,  41,  127,  300,  321,  436,  558,  924. 
Restitution  before  repudiation,  23. 
Restriction  in  chain  of  title,  43. 
Res  gestae,  755,  834,  835. 

Retainer,  when  broker  taking  from  purchaser  allowable,  454. 
Retroactive,   law  requiring  contract  employing  broker  to  be  in  writing 

not,  1125. 

Reversal,  to  work,  errors  must  have  been  prejudicial,  1078a. 
Revived,  agency  terminated,  not  by  subsequent  acts,  15. 
Revocation  of  authority  granted  to  agent,  13,  15,  22,  79,  84,  89,  283a,  292, 
300,  328d,  358,  421,  446,  454,  510,  516,  521,  572,  632a,  684c,  802, 
873a,  906a,  988,  1110. 
Rights,  duties  and  liabilities  of  principal  and  agent,  Pt.  3,  Sees.  290-422. 

effect  of  concealment  upon,  291. 

to  commission  not  defeated  because  to  be  paid  from  purchase  money, 

501. 
Right  to  sell  not  implied  by  advertisement  on  land,  128. 

of  broker  to  agreed  commissions,  423,  423a. 

to  withdraw  if  title  bad,  exercised,  bars  commission,  517,  534. 

of  broker  to  commission  regardless  of  title  of  customer,  533. 
Rights  of  third  persons,  290,  386,  416. 

of  broker  depend  on  new  contract,  411. 
Right  to  conveyance  by  agent,  462. 

to  commissions,  when  modified,  479. 

to  commissions,  not  affected  by  owner's  suppositions,  528. 

of  two  heirs  not  acquired,  555. 

of  action  for  commission  when  accrues  to  broker,  632b. 

of  immunity,  estopped  from  asserting,  601. 
Rival  brokers,  137.  424,  515,  518,  608,  909,  1024. 


Sale,  consolidation  of  interest  not  a,  66. 

employed  to  sell  who  secures  a  mere  option,  85. 

by  owner,  subject  to  option,  not  breach  of  contract,  91. 

by  owner  before  expiration  of  option,  110. 

if  terms  omitted,  satisfactory  to  principal  implied,  112. 


1040  INDEX. 

[References  are  to  sectlons.l 

Sale,  consolidation  of  interest  not  a — Continued. 

according  to  terms  entitles  broker  to  commission,  113. 
contract  of,  may  be  established  by  circumstantial  evidence,  114. 

judicial,  115. 

nominal  broker  not  entitled  to  commission  for,  116. 

enjoined,  broker  entitled  to  commission,  118,  469. 

broker  must  effect  to  earn  commission,  119. 

withdrawal  from  entitled  broker  to  commission,  120. 

properties  for  others  and  cash  difference,  a,  121,  164. 

miscarrying  without  fault  of  principal  broker  not  entitled  to  com- 
mission, 122. 

by  wrong  description,  broker  not  entitled  to  commission,  123. 

single,  not  doing  business  to  need  license,  124,  576. 

forced  with  joint  owner,  broker  not  entitled  to  commission,  125. 

by  broker  to  resell  no  fraud,   126. 

ineffectual  where  broker  had  no  right  to  make  it,  127. 

advertisement  on  land  does  not  imply  right  of,  128. 

to  find  purchaser,  none  to  make,  120a. 

agent  buying  at  inadequate  price  by  fraud,  set  aside,  130. 

agent  becoming  purchaser  unknown  to  principal,  set  aside,   131. 

without  effort  accepted  entitles  broker  to  commission,   132. 

contract  may  require  a,  to  entitle  broker  to  commission,  133. 

at  $350,  when  limited  to  $400,  broker  not  entitled  to  commission,  134. 

at  $1,500,  after  asking  lower  terms,  unauthorized,  135. 

at  $1,500,  while  land  increasing  in  value,  unauthorized,  18. 

without  special  contract,  broker  to  earn  commission  requires  a,  136. 

by  one  of  rival  brokers  ends  contract  with  others,  137. 

whether  broker  entitled  to  commission  for  both  auction  and  private, 
a  question  for  jury,  138. 

by  broker  of  property  acquired  from  principal  liable  to  latter,  139. 
"     without  written  authority  excepted  from  statute  of  frauds,  140. 
Sale,  by  second  agent  to  client  of  first,  latter  not  entitled  to  commission, 
141. 

by  owner  before  sale  by  agent  bars  commission,  142. 

disagreement  as  to,  acquiesced  in  by  broker,  bars  commission,  143. 

for  cash  complied  with  by  payment  on  execution  of  deed,  144. 

of  public  land,  broker  to  earn  commission  must  show  what,  146. 

plaintiff  to  plat  and  sell  and  pay  $150  an  acre  to  defendant,  a  contract 
of,  147. 

broker  failing  to  sell  and  owner  selling  to  customer,  broker  not  en- 
titled to  commission,  148. 

power  to  make  does  not  include  power  to  lease,  exchange,    or  mortgage, 
167,  202,  263. 

lease  with  privilege  of  purchase  equivalent  to,  200. 

broker  bringing  about  entitled  to  commission,  215,  491. 

of  lease  frustrated  by  lessor,  broker  not  entitled  to  commission,  216. 


INDEX.  1041 

[References  are  to  sections.] 

Sale  by  second  agent  to  client  of  first,  latter  not  entitled  to  commission 
— Continued. 

under  power  in  mortgage  not  necessary  to  inform  mortgagor,  259. 

conditional  of  mortgage,  broker  securing,  272. 

of  bonds  declared  illegal  deprives  broker  of  commission,  276. 

broker  selling  bonds  entitled  to  commission  on  procuring  buyer,  277. 

broker  not  entitled  to  commission  for  selling  bonds  on  buyer  with- 
drawing, 278. 

delivering  bonds,  without  disclosing  principal,  liable  if  null  and  void, 
279. 

broker  selling  bonds  in  good  faith  not  liable  to  trust  estate  for 
illegal,  280. 

authority  of  village  to  sell  bonds  includes  authority  to  employ 
broker,  281. 

by  agent  to  principal  of  his  own  property  set  aside,  321. 

power  confirming,  confers  power  to  sell,  322. 

power  to  sell  in  lots  confers  none  to  sell  otherwise,  340. 

broker  to  sell  land  can  take  nothing  but  money,  342. 

broker  not  liable  for  poor  sale  by  sub-agent,  394. 

to  others  than  syndicate  by  owner  bars  commission,  406. 

for  all  cash  complies  with  authority  for  half  cash,  410. 

broker  to  sell  for  half  cash,  remainder  on  time,  cannot  sell  for  all 
cash,  410a. 

Authority  to  make  for  specified  sum  is  for  cash  only,  422a. 

at  less  than  fixed  price,  broker  not  entitled  to  commission,  426. 

broker  negotiating  with  two,  sale  to  one  by  owner  bars  commis- 
sion, 432. 

void  by  statute,  broker  not  entitled  to  commission,  433. 

broker  unsuccessful  with  F.  and  sale  by  owner  to  him  and  others 
bars  commission,  437. 

Unless  exclusive,  broker  not  entitled  to  commission  on  sale  by  an- 
other agent,  439. 

broker  entitled  on  sale  by  owner  to  commission  on  share  of  two  ten- 
ants in  common,  440. 

broker  who  first  succeeds  in  making,  entitled  to  commission,  445. 

broker  who  was  the  procuring  cause  of,  entitled  to  commission,  17, 
305,  445,  446,  447,  454. 

by  principal  uninfluenced  by  broker,  latter  not  entitled  to  commission, 
42,  454. 

failure  of  broker  to  make  a,  457. 

failure  of  broker  to  consummate  contract  of,  458. 

failure  of  by  defect  in  title,  459. 

at  net  price,  broker  not  entitled  to  commission,  482. 

by  principal  without  notice  to  broker  before  time  expired,  490. 

broker  entitled  to  commission  on  sale  of  four  houses,  not  entitled  to 
proportionate  for  one,  493. 


1042  INDEX. 

[References  are  to  sections.] 

Sale  by  second  agent  to  client  of  first,  latter  not  entitled  to  commission 
— Continued. 

commission  payable  on,  and  not  on  collection  of  deferred  payments, 
498. 

cases  in  which  broker  was  held  not  to  be  procuring  cause  of,  507. 

frustrated  through  failure  to  partition,  broker  entitled  to  com- 
mission, 508. 

made  after  revocation  of  authority  entitled  sub-agent  to  commis- 
sion, 521. 

made  at  reduced  price,  sub-agent  not  entitled  to  commission,  524. 

to  railroad  instead  of  to   syndicate  entitled  to  commission,  526. 

other   than   contemplated,   broker   entitled   to  commission,   527. 

on  making,  broker  not  deprived  of  commission  by  defect  in  title,  533. 

defeated  by  want  of  title,  which  he  knew  broker,  not  entitled  to  com- 
mission, 539. 

failing  by  dispute  over  taxes  broker  not  entitled  to  commission,  541. 

withdrawal  of  land  from  entitled  broker  to  commission,  552. 

withdrawal  and  sale  by  owner  to  customer,  in  good  faith,  bars  com- 
mission 553. 

failing  because  rights  of  two  heirs  not  acquired,  broker  entitled  to 
commission,  555. 

to  customer  after  employment  ended  bars  commission,  558. 

in  trying  to  effect  sale  of  real  estate  party  may  extravagantly  extol, 
586. 

for  less  than  broker  claims,  defendant  cannot  object,  627. 

admitted,  broker  entitled  to   reasonable  compensation,   615a. 

executed,  when  inadmissible  in  evidence,  767. 

of  bonds  released  from  registry  through  forgery,  38,  574. 

broker  not  liable  to  principal  for  money  paid  purchaser  on  reject- 
ed, 642a. 

of  land  by  broker  entitled  him  to  commission  no  notice  of  revocation 
having  been  given,  1110. 

after  appointment  of  a  receiver,  62a. 

of  land  for  fellow-broker,  76b. 

so  construed  and  not  an  option,  82a. 

and  also  option  to  purchase,  84a. 

of  real  estate  though  word  "option"  used,  90a. 

broker  having  option  may  sell  for  more  and  not  account  for  excess, 
105a. 

option  denned,  llOb. 

power  of  broker  limited  to  sell,  112a. 

broker  entitled  to  commission  for  aiding  in  making  a,  113a. 

broker  entitled  to  commission  for  selling  for  more  cash  than  required, 
113b. 

broker  entitled  to  commission  for,  though  to  person  other  than  desig- 
nated, 113c. 

broker  must  effect  or  secure  binding  contract,  113d. 


INDEX.  1043 

[References  are  to  sections.] 

Sale  of  second  agent  to  client  of  first,  latter  not  entitled  to  commission. 
— Continued. 

transfer  by  joint  owner  of  half-interest  a,  125a. 

by  owner  to  broker's  customer,  142a. 

by  owner  to  broker's  customer  after  employment  ended,  142b. 

of  land  by  mortgagee  not  a  withdrawal  of  contract  of  broker,  274a. 

commissions  payable  on  as  payments  collected,  440a. 

broker  procuring  cause  of  entitled  to  commission,  507a. 

not  enough  for  broker  to  show  his  act,  but  one  of  chain  of  causes 
producing,  822a. 

when  by  principal  a  breach  of  agency  contract,  23. 
Sales  of  real  estate,  112-148. 
Sancho  Panza  Verdict,  1063,  1070. 
Sanitarium,  300. 
Satisfactory  to  purchaser,  option,  100. 

principal,  See  TERMS  OF  SALE. 
School  building,  327. 
Scope  of  employment,  18,  298,  521,  560,  564,  757,  992. 

of  the  petition,  1034. 

Seals  and  the  necessity  for  their  use,  592. 
Secret  understanding,  221,  401. 

commission  paid  to  vendee's  agent,  401. 
Secretly  employed,  166,  290,  291,  400. 

securing  new  term  to  himself,  broker  holds  as  trustee,  203. 

learning  price  of  property,  399. 
Securities,  257,  283,  287,  357,  403,  630. 
Security,  broker  may  be  responsible  for  the  sufficiency  of,  229,  403. 

of  real  estate,  broker  effecting  loan  on,  533. 
"Sell,"  meaning  of  the  term,  18,  26,  328h,  557. 
Sequence  broken,  and  its  effect,  448. 

Servant.     Person  to  find  purchaser,  when  not  a  broker  but  a,  8. 
Set  aside,  verdict  for  procuring  loan,  252. 
Severable  contract  for  effecting  an  exchange,  176. 

for  effecting  a  sale,  560,  1116. 

Sharing  commissions,  21,  291,  300,  305,  314,  396,  397,  398,  520,  522,  558, 
632c,  695a,  791,  808. 

agreement  between  two  brokers  therefor,  bars  commissions,  371. 

profits,  497. 

Sign  on  property  as  for  sale  by  agent,  42. 
"Signed,"  subscribed  equivalent  to,  78. 
Signature  of  principal  by  agent,  74,  75,  76,  77,  314. 
Silence,  when  equivalent  to  approval,  24. 

when  it  does  not  ratify  an  unauthorized  act,  24. 
Silent  where  evidence  is  as  to  previous  sales,  800. 
Skill,  broker  required  to  exercise  that  of  calling,  402. 
Snow  and  ice,  failure  to  remove  from  sidewalk,  591. 


1044  INDEX. 

[References  are  to  sections.] 

South  Dakota,  contract  with  broker  to  sell  land  must  be  in  writing,  590. 
Specific  performance,  18,  295,  307a,  314,  462,  559,  572,  630,  718,  762. 
Speculate  off  of  his  principal,  broker  forbidden  to,  37. 
Stale  authority,  sale  under  will  not  be  specifically  enforced,  18. 
Statutory  commissions,  broker  charging  more  limited  to,  241. 
Statute  of  frauds,  10,  21,  34,  41,  83a,  140,  140a,  404,  433,  433a,  492,  590, 
601a,  605,  606,  609,  668. 

of  limitations,  28,  286,  607,  838a. 
Statutes,  433,  600,  773,  1093. 

Stipulation  as  to  payment  of  commissions,  557,  570. 
Stock,  commissions  payable  in,  468,  480. 

broker  entitled  to  commission  from  sale  of,  1095. 

Sub-agents,  11,  lla,  lib,  24,  25,  26,  42,  79,  291,  300,  316,  317.  390,  390a, 
391,  392,  393,  394,  394a,  395,  396,  396a,  397,  397a,  397b,  398, 
497,  519,  520,  520a,  521,  522,  522a,  523,  524,  525,  557,  558,  907, 
912. 

Sub-delegated,  acts  that  can  not  be,  5. 
Sub-letting,  213. 

Subrogation,  when  vendor  not  entitled  to,  572. 
Substitution,  power  unauthorizing,  26. 

of  contract  for  that  sued  on  defeats,  638. 

Suppositions,  broker's  right  to  commission  not  affected  by  owner's,  528. 
Survey,  18,  26,  339. 
Syndicate,  15,  28,  305,  405,  406,  464,  526,  607,  1000. 

T 

Taxes,  41,  171,  529,  541,  542,  1085. 
Telegram  must  reach  owner,  when,  80,  81. 

broker  failing  to  name  purchaser  in,  530. 
Telegraph  company  not  agent  of  owner  as  to  notice,  80. 
Telephoning,  mistake  in,  444. 

Tenant,  agent  in  charge  of  real  estate  procuring,  entitled  to  recover  on 
quantum  meruit,  510. 

broker  for  has  no  claim  on  lessor  for  commission,  208. 

petition  to  recover  for  services  in  procuring,  650. 

where  tenant  and  owner  made  lease  broker  barred  commission,  214a. 

broker  entitled  to  commission  on  finding  satisfactory,  221a. 
Tenants,  owner  liable  for  injuries  to  prospective,  347. 

lessor's  rights  not  affected  by  broker's  secret  understanding  with,  221. 

in  common,  290,  407,  440. 

in  common,  interest  of,  64. 
Tender,  in  action  for  commissions  not  necessary  to  prove,  236. 

of  payment,  when  necessary  must  be  shown,  557,  570. 

when  not  necessary,  436,  593,  625. 

on  broker  taking  title  to  land  purchased,  principal  may  tender  amount 
and  demand  deed,  595. 


INDEX.  1045 

[References  are  to  sections.] 

Tentative,  defendant  can  show  contract  of  lease  merely,  218. 
Terms,  when  changed  by  parties  broker  entitled  to  commission,  175 
broker  to  earn  commission  for  loan,  must  show  on  same,  226 
of  sale,  if  omitted  satisfactory  to  principal  implied,  12,  112,  328b. 
making  contract  contrary  to,  defeats  commission,  41,  409. 
of  sale  or  exchange,  commission  earned  when  both  parties  agree  on, 

191,  532. 
of  loan  to  be  satisfactory  to  lender,  on  refusal  broker  not  entitled  to 

commission,  225. 

broker  failing  to  disclose  best,  bars  commission,  412. 
of  agreement  a  question  for  the  jury,  916. 
broker  effecting  sale  on  lower,  408. 
of  half  cash  complied  with  by  sale  for  all,  410. 
if  agreed  on  right  to  commission  cannot  be  defeated,  454. 
if  broker  departs  from,  principal  ratifying  cures,  557. 
of  sale  objected  to.  evidence  that  sale  conformed  with  instructions,  668. 
of  employment.     See  EMPLOYMENT,  TERMS  OF. 

Texas,  doctrine  of  quantum  meruit  for  partial  performance  of  entire  con- 
tract, 546a. 

Theater,  unconsummated  lease  of,  216a, 
Theory  of  the  case,  instructions,  1008,  1034. 
Third  persons,  fraudulent  representations  by,  454. 

failing  to  buy  by  defect  in  title,  broker  not  entitled  to  commission, 

458. 

brokers  not  liable  to  for  acts  in  representative  capacity,  341b. 
Timber,  sale  of  standing,  454,  511,  512,  572. 
land,  alteration  of  contract  to  sell,  485. 
erroneous  charge  in  regard  to  sale  of,  991. 
agent  to  sell  without  authority  to  grant  license  to  cut,  330. 
Time,  principal  selling  before  expiration  of,  490. 

broker    has    no    right    to    extend    for    payment    of   purchase   money, 

18,  61. 

directing  broker  to  sell  after  expiration  of,  extends,  42. 
limit  in,  when  does  not  defeat  broker's  right  to  commission,  454,  479, 

482. 
what  is  a  reasonable  depends  on  circumstances   in  each  case,   611, 

1080. 

fact  which  failed  to  show  extension  of,  18. 
broker's  employment  continues  for  a  reasonable,  612,  613. 
immaterial,  where  broker  finds  purchaser  while  employed,  614. 
extension  of  should  be  pleaded,  1101. 
when  broker  agreed  to  wait  for  commission  until  owner  sold  farm 

held  to  mean  for  a  reasonable,  498a. 

owner  entitled  to  reasonable  to  prepare  abstract,  deed,  etc.,  612a. 
owner  bound  to  broker  for  reasonable,  to  find  a  purchaser,  612c. 
long  lapse  of,  in  bringing  suit,  bears  on  weight  of  evidence,  838a. 


1046  INDEX 

[References  are  to  sections.] 

Time  of  the  essence  of  the  contract,  15,  26,  556. 

for  performance,  whether  waived,  a  question  for  the  jury,  919. 

whether  limit  placed  on,  a  question  for  jury,  922. 
evidence  of  length  of,  of  land  for  sale,  750. 
Title  papers,  contract  of  agency  ceases  on  delivery  of,  14. 

owner  not  required  to  inform  broker  of  restrictions  in  chain  of,  43. 
abstract  of,  23,  32,  179,  225,  228a,  248,  250,  476a,  501,  534,  570,  597, 

612a,  999. 
defect   in  defeating  sale,   loan  or  exchange,    12,    156,   223,   314,   458, 

459,  533,  535,  730a,  1071. 
supposed  defect  in  defeating  sale,  537. 
principal  receiving  good  to  property  exchanged,  152. 
contract  to  convey  not  sufficient  evidence  of,  159. 
or  interest  in  properties  exchanged,  broker  has  no,  172. 
suit  for  clearing,  514,  51 4a,  809. 
reserving  right  to  withdraw  if  found  defective,  517. 
when  not  necessary  to  show  vendor  has  clear,  596. 
defect  in  defeating  loan,  223,  225,  248,  248a,  250. 
petition  for  commission  on  passing  of,  defective,  649. 
loan  refused  for  defective,  broker  not  entitled  to  commission,  223,  225. 
loan  refused  for  defective,  broker  entitled  to  commission,  240. 
loan  refused  for  defective,  broker  to  recover  commission  must  prove, 

240a. 

where  broker  undertook  to  examine,  liable  for  loss  from  unpaid  mort- 
gage, 261. 

broker  knowing  defect  in,  can  not  himself  acquire,  345. 
unless  clothed  with  power  by  owner  no  one  can  transfer,  413. 
Title,  equitable,  311. 
cloud  on,  514. 

principal  securing  good,  invalidity  of  contract,  unavailing,  454. 
contract  drawn  to  bar  commission  in  case  of  defect  in,  459. 
customer  reserving  right  to  withdraw  if  defective,  if  exercised,  bars 

commission,  517. 
time  given  to  examine,  14. 

payment  of  commissions  may  depend  on  transfer  of,  536,  596a. 
whether  principal   or   another   holds,   broker   entitled  to  commission, 

538. 
sale   defeated   by   want  of,   which   he   knew,   broker   not   entitled   to 

commission,  539. 

ignoranne  of  contract  by  holder  of  record,  540. 

taken  by  agent,  principal  may  tender  amount  and  demand  deed,  595. 
when  not  necessary  for  broker  to  show  vendor  had  a  clear,  596. 
compensation  of  broker  due  on  breach  by  vendor,  although  postponed 

by  contract  till  title  passed,  536a. 
when  marketable   in   fee   simple  necessary  to  give  broker   right   to 

commission, 


INDEX  1047 

[References  are  to  sections.] 

Tort,  40,  298,  321,  347a,  414. 

Transacting  all  business,  agent  may  collect  payment  of  note,  356. 

Transaction  not  in  fraud  of  plaintiff,  126. 

receipt  in  another  inadmissible,  184. 

consummation  of,  570. 

broker  acting  for  others  not  entitled  to  share  in,  388. 

concluded  without  aid  of  broker,  454. 
Trusts  and  trustees,  35,  37,  50,  203,  280,  288,  295,  295a,  314,  345,  359, 

404a,  576,  635. 

Trust  company  to  buy  and  sell  real  estate  not  a  broker,  8. 
Turpentine  rights,  fatal  variance,  878. 
Typical  cases  in  which  sub-agent  held  entitled  to  commission,  523. 

u 

Ultimate  facts  must  be  pleaded,  632. 

Unauthorized  condition,  broker  not  entitled  to  commission  for  contract 
subject  to,  547. 

Unavailing  efforts  of  broker   do  not  entitle  to  compensation,   290,   643, 
558,  630. 

Uncertainty  of  identity,  must  be  established  by  evidence,  831a. 

Unconscionable  demand,  amendment  to  set  up  refused,  667,  667a. 

Unconstitutionally  of  statute,  600. 

Undelegatable,  certain  acts  are,  4,  5. 

Understanding  contract  of  sale  by  principal  unimportant,  557. 

Undertaking.     See  PERFORMANCE. 

Undisputed,  if  evidence  on  any  given  fact  is,  court  should  so  instruct, 
939,  1044. 

Undisclosed  agreement  to  divide  commission  with  purchaser  does  not  bar 

right  to  commission,  545,  557. 
principal,  41,  279,  452,  583,  601. 

Undivided  interest,  63. 

Unenforceable,  where  broker  must  be  authorized  in  writing,  contract  with- 
out, 602,  603. 

Unexpert  witnesses,  evidence  of,  766. 

Unilateral  contracts,  20. 

Uninterrupted,  to  entitle  broker  to  commission  for  sale  negotiations  must 

be,  544. 
negotiations  after  expiiation  of  time  entitled  broker  to  commission, 

557. 

Universal,  custom  or  usage  must  be  to  become  a  matter  of  law,  598. 
Unlawful  commissions,  sub-agent  denied  recovery  of,  522. 

that  which  is  contrary  to  law,  etc.,  559. 
Unlicensed  broker,  contract  by  not  absolutely  void,  604. 
Unsatisfactory,  if  any  of  the  terms  of  the  contract  be,  principal   should 

object  on  that  ground,  42. 


1048  INDEX 

[References  are  to  sections.] 

Unsuccessful  negotiations  with  F.  and  sale  by  owner  to  him  and  others, 

bars  commission,  437. 
Usage.    See  CUSTOM  AND  USAGE. 


Vacant  property,  757. 

Vague,  broker  not  entitled  to  commission  for  contract  too,  for  enforce- 
ment, 551. 

Vagueness  of  terms  of  contract  immaterial,  if  minds  of  parties  met,  557. 
Values,  149,  185,  194,  196,  227,  228,  294,  416,  461,  558,  572,  615,  742,  754, 

762,  782,  785,  796,  798,  801,  811,  1045,  1076. 
Validity  of  sale,  when  purchaser  can  not  insist  upon,  314. 
Variances,  41,  307a,  409,  428,  428a,  428b,  515a,  515d,  531,  550,  587,  704a, 

874-887g,  938. 
Vendee.     See  PURCHASES. 

Vendor,  40,  41,  73,  143,  290,  374,  401,  420b,  436,  531. 
Verbal  contract  for  sale  of  land,  no  rights  in  equity  out  of,  589. 
Verdicts,  252,  1046,  1054-1064,  1065a,  1065b,  1075b. 
Vested  remainder,  broker  procuring  purchaser  on  different  terms  for,  barred 

commissions,  548. 

Village,  authority  to  borrow  money,  281,  328o. 
Violation  of  instructions  warranted  terminating  agency,  15,  290. 

action  by  principal  for  damages  for,  299. 

by  sub-agent,  395. 
Voidable,  deed  not  void  but.  572. 

Void,  broker  procuring  contract  to  be,  if  first  payment  fails,  not  entitled 
to  commission,  549. 

where  contract,  by  statute  of  frauds,  broker  barred  commission,  433. 

contract  by  unlicensed  broker  not  absolutely,  604. 

See  also  NULL  AND  VOID. 

Voluntary  payment  by  defrauded  party,  no  defense  to  agent,  693b. 
Volunteers,  443,  466. 

w 

Waiver.    See  also  ACQUIESCENCE. 

of  tenant's  privilege  of  renewal  binds  principal,  206. 

of  performance,  14,  23,  515,  515b,  515d.  515e,  515f. 

by  failure  to  object  to  amended  answer,  667a. 

of  notice  by  principal,  361. 

of  variance  in  contract  by  acquiescence,  450,  515a,  515d,  515e. 

of  tender,  625. 

a  question  for  the  jury,  919. 


INDEX  1049 

[References  are  to  sections.] 

Warranty,  power  to  sell  and  convey  includes  power  to  give,  26,  328k,  417. 

in  other  States  the  power  must  be  specifically  conferred,  418. 

of  authority,  39,  300,  328n,  569. 

Washington,  State  of,  contract  with  broker  to  sell  land  must  be  in  writ- 
ing, 590. 
Whole  value  of  property,  broker  entitled  to  commission  upon,  185. 

price,  tender  of  by  purchaser,  557. 

Widow's  man  of  business,  fair  dealing  of  impeached,  29. 
Wife  and  husband,  39,  51,  314,  454,  774,  826,  908,  1022,  1057. 
Withdraw,  where  right  to  exercised,  broker  barred  commission,  534. 
Withdrawal  of  broker's  authority  to  sell,  deed  not  a,  57. 

of  land  from  sale,  under  contract  entitled  broker  to  commission,  120, 
552. 

of  land   from  sale,  contract  to  pay  commission  upon  strictly  con- 
strued, 585. 

of  case  from  the  jury,  636a. 

and  sale  by  owner,  in  good  faith,  bars  broker's  commission,  17,  553. 

before  contract,  options  with  such  liberty  do  not  entitle  broker  to 
commission,  95. 

by  purchaser  after  commission  paid  to  broker,  principal  cannot  re- 
cover, 554. 

sale  by  owner  after,  error  to  submit  to  jury,  917. 
Will,  5,  34. 
Witnesses,  where  instrument  to  be  executed   requires   two,  power   must 

have  same  number,  26. 
Words  and  phrases. 

"Abbey  Ranch,"  550. 

"ability,"  1132   (122). 

"able,"  580a. 

"accepted,"  567. 

"advertisement,"  561. 

"agent,"  3a. 

"all  right,  go  ahead,"  1132   (71). 

"amount,"  1123. 

"any  trade,"  527. 

"as  to  loans  made  by  us,"  62. 

"bargain,"  1132  (64). 

"bringing  the  seller  and  purchaser  together,"  33. 

"broker,"  7. 

"brokerage,"  8a. 

"changed  by  mutual  agreement,"  1047g   (15). 

"complete,"  1047h   (15). 

"contributed,"  1047h  (7). 

"divide,"  1086. 

"drunkenness,"  60. 


1050  INDEX 

[References  are  to  sections.] 

Words  and  phrases — Continued. 
"earnest  money,"   1132    (35). 
"efficient  cause,"  1047f    (29). 
"entire,"  1047g  (7). 
"exchange,"  1132   (104). 
"exclusive  agency."  13. 
"for  and  on  behalf,"  58. 
"get  an  offer,"  12. 
"hiring  contract,"  1047g   (50). 
"immediately,"  580. 
"in  any  event,"  367b. 
"in  full  settlement."  662. 
"intent,"  1047g   (13). 
"influence,"  1132    (127). 
"irrevocable,"  16. 
"known,"  465. 
"list,"  1117. 

"my  property,"  48  Eldridge  Court,  59. 
"my  real  and  personal  estate,"  26. 
"negotiate,"  18,  464,  1047h  (20),  1082. 
"net  cash,"  485. 
"net  rental,"  171,  1132   (54). 
"offer,"  445. 

"pecuniarily  able,"  1130. 
"placed  in  the  hands  of,"  367. 
"prime  cause,"  1047g  (23). 
"procured,"  1047g    (21). 
"procuring  cause,"  1047f   (29). 
"real  estate  and  note  broker,"  37. 
"sale,"  121,  1132   (80). 
"sell,"  18,  26,  328h,  367a,  557,  1132    (80). 
"sell,  giving  abstract,"  1132   (82) 
"sell,  in  the  principal's  name,"  1132    (65,  66). 
"showing,"  557. 
"sold,"  445,  1112. 
"solicit,"  1005a. 
"subscribed,"  78. 
.     "taxes,"  1085. 
"this  week,"  577. 
"timber,"  1127. 

"title  to  the  satisfaction  of  purchaser,"  1126. 
"to  get  a  deal,"  455,  567. 

"upon  consummation  of  exchange  within  24  hours,"  1132   (110)', 
"upon  the  terms  named,"  1132   (109). 
"when  the  sale  is  consummated,"  1132   (98). 


INDEX  1051 

[References  are  to  sections.] 

Writing,  contract  to  divide  commissions  must  be  in,  79. 

contract  for  the  sale  of  real  estate  in  many  States  need  not  be  in,  419. 

contract  hiring  auctioneer  need  not  be  in,  605. 

contract  required  to  be  in,  without  unenforceable,  602. 

action  ex  delicto  maintainable  on  parol  contract,  79d. 

contract  between  agent  and  sub  need  not  be  in,  523a. 

contract  between  brokers  to  share  commission  need  not  be  in,  583a. 

contract  of  employment  of  broker  or  middleman  must  be  in,  60 2a. 

contract  to  purchase  land  not  required  to  be  in,  603a. 
Written  contract,  broker  authorized  to  make,   can  not  make  oral,   363, 
41  la. 

necessary,  failing  to  show,  rest  immaterial,  647. 
Written  instruments,  alterations  in,  293. 

construction  of  for  the  court,  897. 


1052  INDEX 


INDEX  TO  FORMS. 

[References  are  to  numbers] 


Advances,  sale  of  building  lots,  vendor  to  make,  32. 
Agency,  exclusive  for  fhe  sale  of  realty,  3,  4. 
Agreement  for  purchase  of  farm  land,  15,  16. 

for  sale  of  land,  12,  13,  14. 

to  be  signed  by  purchaser  at  auction,  28. 
Attorney,  powers  of,  8,  9. 
Auction,  agreement  to  be  signed  by  auctioneer,  29. 

agreement  to  be  signed  by  purchaser,  28. 

c 

Conditional  sale,  agreement  for,  24. 

D 

Dwelling  house,  agreement  for  sale  and  purchase  of,  18. 

E 

Exchange  of  lands,  agreement  for,  30,  31,  33. 

F 

Fruit,  agreement  for  sale  of  crop  of,  36. 

G 

Grass,  agreement  for  sale  of  crop  of,  35. 

I 
Instalments,  agreement  for  purchase  by,  16. 

L 

Lease-clause,  agreement  for  sale  with,  23. 
Leasehold  or  fee  simple,  contract  of  sale  of,  20. 
Listing  of  property  with  agent  for  sale,  1,  2. 


INDEX  1053 

[References  are  to  numbers] 

Loan,  employment  of  agent  to  secure,  7. 
Lot,  agreement  for  sale  of  building,  25,  32. 

agreement  for  sale  of  in  weekly  payments,  17. 

M 

Mortgage,  agreement  to  purchase  subject  to,  19. 
where  part  of  purchase  price  to  be,  21. 

N 

Nuisances,  agreement  for  sale  of  land  with  provision  against,  14. 


Purchase  money,  agreement  that  purchaser  withhold  part  of,  26. 

of  farm  land,  agreement  for,  15. 
Purchaser,  contract  to  procure,  6. 

B 

Receipt  for  deposit  by  purchaser,  27. 

s 

Sale  of  realty,  contract  for,  5,  10,  11,  12,  13,  14,  15,  16,  17,  18,  19,  20, 
21,  22,  23,  24,  25,  26,  32. 


Timber,  agreement  for  sale  of  standing,  34. 

Title,  purchaser  to  retain  part  of  purchase  money  until  removal  of  de- 
fect in,  26. 


LAW  LIBRARY 
UNIVERSITY  OF  CALIFORNIS 

LOS  ANGELES 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


DEC3119M 

APR     51983 


Form  L9-Series  4939 


